Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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`M. RAE, INC., d/b/a FENICCI’S OF
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`: CIVIL ACTION NO. 1:20-CV-2366
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`HERSHEY, PORTABELLA’S INC.,
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`d/b/a RIVER HOUSE BAR & GRILL,
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`and HERSHEY INDEPENDENT
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`RESTAURANT ASSOCIATION,
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`v.
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`Plaintiffs
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`THOMAS W. WOLF, in his
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`official capacity as Governor of the
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`Commonwealth of Pennsylvania,
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`and RACHEL LEVINE, MD, in her
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`official capacity as Secretary of the
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`Pennsylvania Department of Health,
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`Defendants
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`(Judge Conner)
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`On December 10, 2020, Governor Tom Wolf and Secretary of Health
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`MEMORANDUM
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`Rachel Levine issued limited-time mitigation orders in attempt to stem the rising
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`tide of COVID-191 cases and hospitalizations in the Commonwealth of Pennsylvania.
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`Among other things, those orders prohibit indoor dining at businesses in the retail
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`food services industry through January 4, 2021. (See Doc. 1-2 at 3; Doc. 1-3 at 3).
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`1 The COVID-19 virus is also known as “severe acute respiratory
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`syndrome coronavirus 2” and “SARS-CoV-2.” Naming the Coronavirus Disease
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`(COVID-19) and the Virus that Causes It, WORLD HEALTH ORG., https://www.who.
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`int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-
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`coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it (last visited Dec. 23,
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`2020). We refer to the virus herein as “the COVID-19 virus” and to the disease it
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`causes as “COVID-19.”
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 2 of 25
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`Plaintiffs are two local restaurants and a nonprofit restaurant association
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`affected by defendants’ limited-time mitigation orders. Relevant here, plaintiffs
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`contend that, by temporarily suspending indoor dining but allowing other indoor
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`retail businesses to remain open, the orders violate their rights under the Equal
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`Protection Clause of the Fourteenth Amendment to the United States Constitution.
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`Four days ago, plaintiffs filed an emergency motion for temporary restraining order
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`and preliminary injunction, asking the court to immediately halt enforcement of the
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`indoor-dining ban. For the reasons that follow, we will deny plaintiffs’ motion.
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`I.
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`Findings of Fact
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`The COVID-19 virus has caused a global pandemic of unprecedented scale.
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`The United States Centers for Disease Control and Prevention (“CDC”) reported
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`the first travel-related case of the COVID-19 virus in the United States in January
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`2020.2 By January 30, the CDC had confirmed the first instance of person-to-person
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`spread in the country.3 On March 6, with 233 confirmed or presumed positive cases
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`in the United States and two presumed positive cases in Pennsylvania, Governor
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`2 See First Travel-Related Case of 2019 Novel Coronavirus Detected in
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`United States, CTRS. FOR DISEASE CONTROL AND PREVENTION (“CDC”) (Jan. 21, 2020),
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`https://www.cdc.gov/media/releases/2020/p0121-novel-coronavirus-travel-case.html.
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`3 See CDC Confirms Person-to-Person Spread of New Coronavirus in
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`United States, CDC (Jan. 30, 2020), https://www.cdc.gov/media/releases/2020/p0130-
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`coronavirus-spread.html (last reviewed Jan. 30, 2020).
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`2
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 3 of 25
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`Wolf declared a state of emergency in the Commonwealth.4 The state of emergency
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`has since been extended three times, most recently one month ago.5
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`Mitigation measures quickly followed the March 6 declaration. On March
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`13, Governor Wolf announced the temporary closure of all K-12 schools in the
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`Commonwealth.6 Six days later, Governor Wolf issued an executive order closing
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`all businesses designated “non-life-sustaining.”7 With respect to restaurants and
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`bars, the order provided that “[b]usinesses that offer carry-out, delivery, and drive-
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`through food and beverage service may continue, so long as social distancing and
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`other mitigation measures are employed.”8 By April 1, each of the Commonwealth’s
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`4 See Proclamation of Disaster Emergency, COMMONWEALTH OF PA., OFFICE
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`OF THE GOVERNOR (Mar. 6, 2020), https://www.governor.pa.gov/wp-content/uploads
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`/2020/03/20200306-COVID19-Digital-Proclamation.pdf.
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`5 See Amendment to Proclamation of Disaster Emergency, COMMONWEALTH
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`OF PA., OFFICE OF THE GOVERNOR (June 3, 2020), https://www.governor.pa.gov/wp-
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`content/uploads/2020/06/20200603-TWW-amendment-to-COVID-disaster-
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`emergency-proclamation.pdf; Amendment to Proclamation of Disaster Emergency,
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`COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR (Aug. 31, 2020), https://www.
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`pema.pa.gov/Governor-Proclamations/Documents/Amendment-COVID19-Disaster-
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`Emergency-083120.pdf; Amendment to Proclamation of Disaster Emergency,
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`COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR (Nov. 24, 2020), https://www.
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`governor.pa.gov/wp-content/uploads/2020/11/20201124-TWW-3rd-Amendment-
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`COVID-19-Proclamation.pdf.
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`6 See Governor Wolf Announces Closure of Pennsylvania Schools, GOVERNOR
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`TOM WOLF (Mar. 13, 2020), https://www.governor.pa.gov/newsroom/governor-wolf-
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`announces-closure-of-pennsylvania-schools/#:~:text=Today%2C%20Governor
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`%20Tom%20Wolf%20announced,gather%20input%20on%20this%20decision.
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`7 See Order of the Governor of the Commonwealth of Pennsylvania
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`Regarding the Closure of All Businesses that Are Not Life Sustaining,
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`COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR (Mar. 19, 2020), https://www.
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`governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-
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`closure-order.pdf.
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`8 Id. at 2.
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`3
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 4 of 25
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`67 counties were under a gubernatorial stay-at-home order.9 On April 9, the
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`Governor extended the K-12 school closure through the remainder of the academic
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`year.10
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`As the initial wave of COVID-19 cases stabilized, Governor Wolf began
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`reopening of the state. The reopening process saw counties progress through
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`“red,” “yellow,” and “green” phases, with the red phase being the most restrictive,
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`and the green phase being the least restrictive.11 Restrictions on indoor dining were
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`lessened as well, with restaurants in green-phase counties permitted to operate at
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`up to 50 percent of the maximum capacity stated on their certificate of occupancy,
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`so long as they complied with defendants’ mitigation guidance.12 By July 3, every
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`county in the Commonwealth had moved to the green phase of reopening.13
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`9 See Order of the Governor of the Commonwealth of Pennsylvania for
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`Individuals to Stay At Home, COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR
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`(Apr. 1, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/04/20200401-
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`GOV-Statewide-Stay-at-Home-Order.pdf.
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`10 See Governor Wolf Extends School Closure for Remainder of Academic
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`Year, GOVERNOR TOM WOLF (Apr. 9, 2020), https://www.governor.pa.gov/
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`newsroom/governor-wolf-extends-school-closure-for-remainder-of-academic-
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`year/#:~:text=Governor%20Wolf%20Extends%20School%20Closure%20for%20Re
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`mainder%20of%20Academic%20Year,-April%2009%2C%202020&text=Continuing
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`%20his%20efforts%20to%20protect,the%202019%2D20%20academic%20year.
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`11 See, e.g., Gov. Wolf Announces Reopening of 24 Counties Beginning May 8,
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`GOVERNOR TOM WOLF (May 1, 2020), https://www.governor.pa.gov/newsroom/gov-
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`wolf-announces-reopening-of-24-counties-beginning-may-8/.
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`12 See Order of the Governor of the Commonwealth of Pennsylvania for the
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`Continued Reopening of the Commonwealth, COMMONWEALTH OF PA., OFFICE OF
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`THE GOVERNOR (May 29, 2020), https://www.governor.pa.gov/wp-content/uploads
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`/2020/05/20200527-TWW-green-phase-order.pdf.
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`13 See Gov. Wolf: Last PA County Will Move to Green on July 3,
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`COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR (June 26, 2020), https://www.
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`governor.pa.gov/newsroom/gov-wolf-last-pa-county-will-move-to-green-on-july-
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`3/#:~:text=Governor%20Tom%20Wolf%20announced%20today,Wolf%20said.
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`4
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 5 of 25
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`Following an “unsettling climb in new COVID-19 cases” in early summer,
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`Governor Wolf issued a “targeted mitigation” order on July 15.14 Among other
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`things, this order reduced capacity at bars and indoor-dining establishments to 25
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`percent, reiterated physical distancing and mask mandates, and imposed certain
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`restrictions on alcohol sales.15 Two months later, on September 17, Governor Wolf
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`amended his July 15 order to allow restaurants and bars to return to 50 percent
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`capacity if they enrolled in and complied with the Commonwealth’s “Open &
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`Certified Pennsylvania” program, self-certifying their compliance with masking,
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`physical-distancing, and digital-menu requirements.16 In announcing the Open &
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`Certified Pennsylvania program, Governor Wolf “recognize[d] that this pandemic
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`has taken a significant toll on the food services industry, so we must balance public
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`health and economic recovery.”17
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`14 See Order of the Governor of the Commonwealth of Pennsylvania Directing
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`Targeted Mitigation Measures, COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR
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`(June 15, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/07/20200715-
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`TWW-targeted-mitigation-order.pdf.
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`15 Id. at 2-3.
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`16 See Amendment to the Order of the Governor of the Commonwealth
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`of Pennsylvania Directing Targeted Mitigation Measures, COMMONWEALTH OF
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`PA., OFFICE OF THE GOVERNOR (Sept. 17, 2020), https://www.governor.pa.gov/wp-
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`content/uploads/2020/09/20200917-TWW-amendment-to-targeted-mitigation-
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`order.pdf; see also Open & Certified Pennsylvania, COMMONWEALTH OF PA.,
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`https://www.pa.gov/covid/open-and-certified-pennsylvania/ (last visited Dec. 23,
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`2020).
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`17 See Wolf Administration Signs Orders that Restaurants May Increase
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`Indoor Occupancy to 50 Percent, GOVERNOR TOM WOLF (Sept. 17, 2020), https://www.
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`governor.pa.gov/newsroom/wolf-administration-signs-orders-that-restaurants-may-
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`increase-indoor-occupancy-to-50-percent/.
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`5
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 6 of 25
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`Since September, the nation has again experienced an alarming spike in
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`COVID-19 cases and hospitalizations.18 The United States and the Commonwealth
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`each saw record-breaking spikes in daily case numbers throughout the fall.19 As
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`a result, Governor Wolf and Secretary Levine again took a variety of actions,
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`including imposing a temporary ban on alcohol sales on November 25, the night
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`before Thanksgiving and a popular evening for bars, beginning at 5:00 p.m. and
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`expiring at 8:00 a.m. on November 26.20
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`Two weeks later, Governor Wolf and Secretary Levine issued the limited-
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`time mitigation orders which are the subject of the instant action. Both orders
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`found that, “despite all efforts taken to date, the pandemic continues to spread,
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`and taking action to prevent that spread while continuing to allow for necessary
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`resumption of economic and social activity requires the Commonwealth to take
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`steps to minimize the danger to Pennsylvanians as a result of that activity.” (Doc.
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`1-2 at 1; see Doc. 1-3 at 1). At the time the orders were issued, the Commonwealth
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`had recorded 457,289 cases in all 67 counties, and 12,010 deaths. (See Doc. 1-2 at 1;
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`18 See generally WHO: Coronavirus Disease (COVID-19) Dashboard: United
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`States, WORLD HEALTH ORG., https://covid19.who.int/region/amro/country/us (last
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`visited Dec. 23, 2020).
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`19 See id.; see also COVID-19 Data for Pennsylvania, PA. DEP’T OF HEALTH,
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`https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last visited
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`Dec. 23, 2020) (scroll to “Daily COVID-19 cases” chart).
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`20 See Order of the Governor of the Commonwealth of Pennsylvania
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`for Mitigation Relating to Businesses in the Retail Food Services Industry for
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`November 25, 2020, COMMONWEALTH OF PA., OFFICE OF THE GOVERNOR (Nov. 23,
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`2020), https://www.governor.pa.gov/wp-content/uploads/2020/11/20201123-TWW-
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`retail-food-services-mitigation-order.pdf; see also Wolf Shuts Bars on Thanksgiving
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`Eve to Fight COVID-19 Spread, ASSOCIATED PRESS (Nov. 23, 2020), https://apnews.
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`com/article/pennsylvania-tom-wolf-coronavirus-pandemic-e368c1185204ae8a3ca
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`854ca826a1439.
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`6
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 7 of 25
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`Doc. 1-3 at 1). Secretary Levine’s order observed that “case numbers and number
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`of deaths continue to rise, and the Commonwealth has seen record high case counts
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`since the end of November.” (Doc. 1-3 at 1; see Doc. 1-2 at 1). Both defendants
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`concluded that the limited-time mitigation orders were necessary “to mitigate
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`the imminent spread of the disease, and associated health hazards presented by
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`COVID-19[], and to enforce the protections necessary to support the response of
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`the Commonwealth to the threat of COVID-19.” (Doc. 1-2 at 1; see Doc. 1-3 at 2).
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`The measures imposed by the limited-time mitigation orders range from
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`restrictions on private gatherings, to capacity limitations for in-person business
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`establishments, to complete closures of other businesses, including but not limited
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`to gyms, fitness facilities, and entertainment venues. (See Doc. 1-2 at 2-3; Doc. 1-3
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`at 3-5). The orders also reinstitute certain restrictions on in-person, indoor-dining
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`establishments. (See Doc. 1-2 at 3; Doc. 1-3 at 3). Specifically, Governor Wolf’s
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`order states:
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`A.
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`All in-person indoor dining at businesses in the
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`retail food services industry, including, but not
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`limited to, bars, restaurants, breweries, wineries,
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`distilleries, social clubs, and private catered events
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`is prohibited.
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`B.
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`Outdoor dining, take-out food service and take-out
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`alcohol sales are permitted and may continue,
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`subject to any limitation or restrictions imposed by
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`Pennsylvania law, or this or any other Order issued
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`by me or by the Secretary of Health.
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`(Doc. 1-2 at 3). Secretary Levine’s order includes an identical indoor-dining
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`restriction, except the final clause reads: “subject to any limitations or restrictions
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`imposed by Pennsylvania law, or this or any other Order issued by me or by the
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`7
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 8 of 25
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`Governor.” (Doc. 1-3 at 3). The orders took effect at 12:01 a.m. on December 12 and
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`will remain in effect until 8:00 a.m. on January 4, 2021. (Doc. 1-2 at 4; Doc. 1-3 at 5).
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`As of this writing, the World Health Organization reports 76,858,506
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`confirmed COVID-19 cases and 1,711,498 deaths worldwide.21 The CDC reports
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`18,170,062 cases and 321,734 deaths in the United States.22 Data published by the
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`Commonwealth’s Department of Health reflects that Pennsylvanians account for
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`581,156 of those cases and 14,442 of those deaths.23
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`II.
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`Background
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`Plaintiffs are two corporations that operate restaurants affected by the
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`limited-time mitigation orders, as well as the Hershey Independent Restaurant
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`Association. (See Doc. 1 ¶¶ 7-14). Plaintiff M. Rae, Inc., does business as Fenicci’s
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`of Hershey, a family-owned restaurant located in Hershey, Pennsylvania, and
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`plaintiff Portabella’s, Inc., does business as River House Bar & Grill, a restaurant
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`located in Middletown, Pennsylvania. (See id. ¶¶ 7-12). The Hershey Independent
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`Restaurant Association is a nonprofit association headquartered in Hershey,
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`Pennsylvania. (Id. ¶ 13). Its members are indoor-dining establishments, and
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`owners thereof, in the Hershey and Palmyra areas. (Id. ¶ 14).
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`21 See WHO Coronavirus Disease (COVID-19) Dashboard, WORLD HEALTH
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`ORG., https://covid19.who.int/ (last visited Dec. 23, 2020).
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`22 See United States COVID-19 Cases and Deaths by State, CDC,
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`https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (last visited
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`Dec. 23, 2020).
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`23 See COVID-19 Data for Pennsylvania, PA. DEP’T OF HEALTH, https://www.
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`health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last visited Dec. 23,
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`2020).
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`8
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 9 of 25
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`Plaintiffs initiated this lawsuit on Thursday, December 17, 2020, with
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`the filing of a three-count complaint. Therein, Plaintiffs challenge the indoor-
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`dining prohibition imposed by the limited-time mitigation orders under the
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`Substantive Due Process Clause, the Procedural Due Process Clause, and the Equal
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`Protection Clause. Two days later, on Saturday, December 19, plaintiffs filed an
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`emergency motion for temporary restraining order and preliminary injunction.
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`We immediately convened a telephonic hearing on Monday, December 21,24 and
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`tasked the parties to file any additional materials for the court’s consideration by
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`noon today. The parties commendably complied, supplying the court with helpful
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`briefing and declarations in support of their respective positions. (See Docs. 12-16).
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`The instant motion is now ripe for disposition.
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`III. Legal Standard
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`Federal Rule of Civil Procedure 65 governs the issuance of temporary
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`restraining orders and preliminary injunctions. See FED. R. CIV. P. 65(a), (b). The
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`same four-factor test applies to both types of equitable relief. See Hope v. Warden
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`York Cty. Prison, 972 F.3d 310, 319-20 (3d Cir. 2020).
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`To obtain a temporary restraining order or preliminary injunction, the
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`movant must, as a threshold matter, establish the two “most critical” factors:
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`likelihood of success on the merits and irreparable harm. See Reilly v. City of
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`Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). Under the first factor, the movant
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`24 The court reporter has provided the court with a rough transcript of the
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`December 21 hearing. Citations thereto are abbreviated “Hr’g Tr.” Pagination of
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`the rough draft may vary from pagination of the official transcript.
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`9
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 10 of 25
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`must demonstrate that “it can win on the merits.” Id. This showing must be
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`“significantly better than negligible but not necessarily more likely than not.” Id.
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`The second factor carries a slightly enhanced burden: the movant must show that it
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`is “more likely than not” to suffer irreparable harm absent the requested relief. Id.
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`Only if these “gateway factors” are satisfied may the court consider the third and
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`fourth factors: the potential for harm to others if relief is granted, and whether the
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`public interest favors injunctive relief. Id. at 176, 179. The court must then balance
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`all four factors to determine, in its discretion, whether the circumstances favor
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`injunctive relief. Id. at 179.
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`IV. Discussion
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`Plaintiffs raise three constitutional claims in their complaint, but they
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`limit their request for emergency relief to their claim under the Equal Protection
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`Clause. (See Hr’g Tr. 25:23-26:1; Doc. 4 at 4-11). Plaintiffs assert that the limited-
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`time mitigation orders single restaurants and bars out for different treatment
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`without adequate justification. (See Doc. 4 at 4-11). In plaintiffs’ view, there is no
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`legitimate reason for suspending indoor dining while allowing other indoor retail
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`businesses to remain open at reduced capacity. (See id.) Plaintiffs further assert
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`that the orders’ temporary indoor-dining prohibition will inflict irreparable harm
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`not only on them, but also on their owners and employees and the restaurant
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`industry as a whole. (See Doc. 3 ¶¶ 5-7; see also Doc. 4 at 11-13). We address
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`these claims seriatim.
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`10
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 11 of 25
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`A.
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`Likelihood of Success on the Merits
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`A movant seeking a temporary restraining order or preliminary injunction
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`must “demonstrate that it can win on the merits.” See Reilly, 858 F.3d at 179. A
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`showing that is “significantly better than negligible but not necessarily more likely
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`than not” is sufficient to obtain preliminary injunctive relief. See id. The requisite
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`strength of a claim on the merits depends ultimately on the balance of the harms:
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`“the more net harm an injunction can prevent, the weaker the plaintiff’s claim on
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`the merits can be while still supporting some preliminary relief.” Id.
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`Plaintiffs’ claims arise under Section 1983 of Title 42 of the United States
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`Code. Section 1983 creates a private cause of action to redress constitutional
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`wrongs committed by state officials. 42 U.S.C. § 1983. The statute is not a source
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`of substantive rights, but serves as a mechanism for vindicating rights otherwise
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`protected by federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp
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`v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a Section 1983 claim, a plaintiff
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`must show a deprivation of a “right secured by the Constitution and the laws of the
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`United States . . . by a person acting under color of state law.” Kneipp, 95 F.3d at
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`1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). The
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`defendants sub judice ostensibly do not dispute that they are state actors. Our sole
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`inquiry is whether plaintiffs have demonstrated that the limited-time mitigation
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`orders arguably violate their constitutional right to equal protection.
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`At the outset, we address the parties’ dispute concerning the appropriate
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`level of scrutiny to be applied to exercises of the police power in the name of public
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`health during the COVID-19 pandemic. For many months, the consensus among
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`11
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 12 of 25
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`federal courts had been that the highly deferential standard of review applied by
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`the United States Supreme Court in Jacobson v. Massachusetts, 197 U.S. 11 (1905),
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`alone governs such challenges. See Parker v. Wolf, No. 20-CV-1601, ___ F. Supp. 3d
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`___, 2020 WL 7295831, at *15 n.20 (M.D. Pa. Dec. 11, 2020) (Jones, C.J.) (citing, inter
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`alia, In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020); Ill. Republican Party v. Pritzker,
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`973 F.3d 760, 763 (7th Cir. 2020); In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020)).
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`The Court in Jacobson considered a substantive due process challenge to
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`mandatory vaccinations following a smallpox outbreak. See Jacobson, 197 U.S. at
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`27-28. The Court held that, while constitutional rights do not evanesce during a
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`public-health emergency, “the rights of the individual in respect of his liberty may
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`at times, under the pressure of great dangers, be subjected to such restraint, to be
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`enforced by reasonable regulation, as the safety of the general public may demand.”
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`Id. at 29. The Court concluded that a measure “enacted to protect the public health,
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`the public morals, or the public safety” will be subject to judicial review only if it
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`“has no real or substantial relation to those objects, or is, beyond all question, a
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`plain, palpable invasion of the rights secured by the fundamental law.” See id. at
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`31. The Court closed by underscoring that this deference to the legislative and
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`executive branches is not without limits and that the police power, even in a public-
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`health emergency, could conceivably be exercised in a manner “so arbitrary and
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`oppressive . . . as to justify the interference of the courts.” See id. at 38.
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`The consensus on Jacobson’s application during the pandemic is not
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`unanimous. Indeed, contrary authority exists within the Third Circuit. In County
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`of Butler v. Wolf, No. 2:20-CV-677, ___ F. Supp. 3d ___, 2020 WL 5510690 (W.D. Pa.
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`Sept. 14, 2020), the district court declined to apply the “extraordinary deference”
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`other courts have drawn from Jacobson, noting both the decision’s age and the
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`Supreme Court’s development of three ordinary tiers of constitutional scrutiny in
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`the time since the case was decided. See County of Butler, 2020 WL 5510690, at *6-
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`10. The court instead applied traditional intermediate and rational-basis scrutiny to
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`the constitutional claims before it. See generally id. at *13-31.
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`The Supreme Court has not opined directly on Jacobson’s continuing
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`viability or its proper role during the COVID-19 pandemic. Two Justices to date,
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`however, have sharply criticized reliance on Jacobson as the “last word on what
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`the Constitution allows public officials to do during the COVID-19 pandemic.”
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`See Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___, 140 S. Ct. 2603, 2608
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`(2020) (mem.) (Alito, J., dissenting); see also Roman Catholic Diocese of Brooklyn
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`v. Cuomo, No. 20A87, 592 U.S. ___, 141 S. Ct. 63, ___, slip. op. at 10 (mem.) (Gorsuch,
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`J., concurring). While neither Justice went so far as to suggest that Jacobson has
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`been stripped of all precedential value, both indicated that the decision’s broad
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`language should not be divorced from its narrow context and that it would be a
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`“considerable stretch” to treat the deference applied in that case as the answer to
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`all pandemic-related constitutional claims. See Calvary Chapel, 140 S. Ct. at 2608
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`(Alito, J., dissenting); see also Roman Catholic Diocese of Brooklyn, slip op. at 10
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`(“That decision involved an entirely different mode of analysis, an entirely different
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`right, and an entirely different kind of restriction.”) (Gorsuch, J., concurring).
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`Case 1:20-cv-02366-CCC Document 17 Filed 12/23/20 Page 14 of 25
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`The bottom line for our purposes is that Jacobson is controlling precedent
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`until the Supreme Court or Third Circuit Court of Appeals tell us otherwise. At
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`its core, Jacobson teaches that some “restraint” on individual liberties must be
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`tolerated in the interest of protecting the public health. See Jacobson, 197 U.S. at
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`29. The difficulty is in squaring that deference with the ordinary tiers of scrutiny
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`developed in the 115 years since Jacobson was decided. That is, does Jacobson
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`simply inform those tiers as modernly understood, or does it entirely displace
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`them where a public-health emergency is concerned?
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`We need not resolve that difficult question here, because Jacobson is easily
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`reconciled with the rational-basis standard of review that would otherwise apply to
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`plaintiffs’ class-of-one claim. See Roman Catholic Diocese of Brooklyn, slip. op. at
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`10 (Gorsuch, J., concurring) (“Although Jacobson pre-dated the modern tiers of
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`scrutiny, this Court essentially applied rational basis review.”). Whether we apply
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`Jacobson’s “no real or substantial relation” test, see Jacobson, 197 U.S. at 31, or the
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`modern formulation of rational-basis review, see Village of Willowbrook v. Olech,
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`528 U.S. 562, 564 (2000),25 plaintiffs have failed to establish a likelihood of success on
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`their equal protection claim.
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`Plaintiffs aver that the limited-time mitigation orders’ distinction
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`between indoor-dining establishments and “other in-person, indoor business
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`establishments” is “arbitrary and irrational.” (Doc. 1 ¶ 67). The fatal deficiency in
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`this claim is that there are differences—and material ones, from an epidemiological
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`perspective—between a restaurant and, say, a grocery or hardware store. The first
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`should be obvious: you can wear a mask while bagging produce or selecting a paint
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`color, but you cannot wear a mask to eat or drink. (See Hr’g Tr. 19:10-11; Doc. 13
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`¶ 17). Plaintiffs’ counsel appropriately conceded this point during our telephonic
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`hearing. (See Hr’g Tr. 10:19-11:9). Other differences are perhaps less obvious but
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`just as important: interactions at “other in-person, indoor business establishments”
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`25 We agree with Justice Gorsuch that Jacobson’s analysis resembles
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`modern rational-basis review. When, as here, a plaintiff does not allege that a
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`contested distinction is based on protected classifications such as race, national
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`origin, religion, or gender, their equal protection claim arises under a “class of one”
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`theory subject to rational-basis review. See Village of Willowbrook, 528 U.S. at 564.
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`A class-of-one claim requires the plaintiff to show that they have been “intentionally
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`treated differently from others similarly situated and that there is no rational basis
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`for the difference in treatment.” Id. The test is “very deferential” and “‘is met if
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`there is any reasonably conceivable state of facts that could provide a rational basis’
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`for the differing treatment.” Newark Cab Ass’n v. City of Newark, 901 F.3d 146,
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`156 (3d Cir. 2018) (quoting United States v. Walker, 473 F.3d 71, 77 (3d Cir. 2007)
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`(quoting Heller v. Doe, 509 U.S. 312, 320 (1993))). Just as Jacobson did, rational-
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`basis cases recognize that an “asserted goal” may be “so attenuated as to render the
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`distinction arbitrary or irrational.” See City of Cleburne v. Cleburne Living Ctr.,
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`473 U.S. 432, 446 (1985); see also Jacobson, 197 U.S. at 38 (emphasizing that police
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`power even in cases of public-health emergencies could conceivably be exercised
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`in a manner “so arbitrary and oppressive . . . as to justify the interference of the
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`courts”). Plaintiffs’ counsel concedes that “in essence, [Jacobson was] applying
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`what is now the rational basis standard.” (See Hr’g Tr. 8:1-4).
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`are often physically distanced and transient, whereas dining, by its nature, involves
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`physically close and sustained interaction. (See id. at 20:2-9). Plaintiffs say they
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`“can implement adequate safety precautions, policies[,] and procedures similar to
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`other in-person business establishments that are permitted to continue operating,”
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`(Doc. 1 ¶ 36), but they have not explained what protections they could offer that
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`would be at all comparable to masking. Plaintiffs’ belief that there is no material
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`difference between dining and non-dining establishments is simply wrong.
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`Plaintiffs also challenge defendants’ stated justifications for temporarily
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`suspending indoor dining. On this point, we find that defendants’ reasoning is
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`not just rational—it is compelling. It cannot genuinely be disputed that COVID-19
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`cases are surging and pushing the Commonwealth’s healthcare system to the brink.
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`Indeed, plaintiffs do not contest Governor Wolf’s or Secretary Levine’s findings that
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`“following an initial curtailing of COVID-19 spread . . . , a second wave of COVID-19
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`cases began in the summer months,” that “despite all efforts taken to date, the
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`pandemic continues to spread,” and that “the Commonwealth is now recording
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`daily COVID-19 cases and hospitalizations in greater numbers than at any other
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`time during this pandemic.” (Doc. 1-2 at 1-2; see Doc. 1-3 at 1-2). And things have
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`only gotten worse. Current data reflects that the number of positive cases in the
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`Commonwealth has climbed by more than 100,000 since December 10, and more
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`than 2,400 additional Pennsylvanian lives have been lost to COVID-19 since that
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`time.26 While counsel is correct that vaccines have since been approved and are
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`now being distributed, (see Hr’g Tr. 17:13-19), they will not be widely available for
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`some time.27 We may be rounding the corner, but we are far from being in the clear.
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`Plaintiffs also offer no meaningful challenge to defendants’ conclusions that
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`masking is an effective mitigation measure and that indoor dining is a higher risk
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`activity because masks cannot consistently be worn. (See Doc. 13 ¶¶ 14-17). The
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`evidence is on defendants’ side here as well. The COVID-19 virus is “transmitted
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`predominantly by respiratory droplets generated when people cough, sneeze, sing,
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`talk, or breathe.”28 And it is now widely accepted by the scientific community that
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`masks help contain the virus’s spread by reducing transmission of those droplets.29
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`Due to the need to remove masks as well as limited air circulation, indoor dining
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`creates “a gr