Big Tyme Investments v. Edwards ( 2021 )

Case: 20-30526 Document: 00515705864 Page: 1 Date Filed: 01/13/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 13, 2021
No. 20-30526 Lyle W. Cayce
Clerk
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,
versus
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
No. 20-30537
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,
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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,
versus
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.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2150
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:20-CV-965
Before Dennis, Higginson, and Willett, Circuit Judges.
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
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differential treatment of bars violates the Equal Protection Clause of the
Fourteenth Amendment. We AFFIRM.
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
1
Coronavirus Disease 2019 (COVID-19): Cases and Deaths by State, Ctrs. for
Disease Control & Prevention, https://covid.cdc.gov/covid-data-
tracker/#cases_casesper100klast7days (last visited Jan. 12, 2021); Louisiana Coronavirus
Information, Louisiana Dep’t of Health, https://ldh.la.gov/coronavirus/ (last visited Jan.
12, 2021).
2
The Governor issued the first emergency proclamation pursuant to the Louisiana
Health Emergency Powers Act, LA. R.S. 29:760. A group of Louisiana legislators, in an
amicus brief, asserts that the Governor has exceeded his authority under that law and the
Louisiana constitution. However, the bar owners do not challenge the Governor’s authority
to issue emergency proclamations. We need not address amici’s arguments—which they
3
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the months that followed, the Governor issued a series of proclamations to
slow the spread of COVID-19. The earliest of these proclamations prohibited
gatherings of ten or more people and shuttered most “nonessential
businesses,” including closing bars and restricting restaurants to take-out
and delivery only. See La. Exec. Dep’t, Proclamation No. 30 JBE 2020, §§ 2–
3 (Mar. 16, 2020); Proclamation No. 33 JBE 2020, §§ 2, 4 (Mar. 22, 2020).
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,
concurrently raised in a separate proceeding in state court—because they are not properly
before us in this appeal. Moreover, whether the Governor acted within his authority is
purely an issue of state law, and federal courts are without jurisdiction to enjoin
enforcement of an executive order allegedly issued in violation of state law. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104–06 (1984).
4
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Proclamation No. 74 JBE 2020, § 2(G)(1) (June 4, 2020). These provisions
initially expired on June 26, 2020, but were extended by the Governor’s
subsequent proclamation until July 24, 2020, “unless terminated sooner”
based on changes in COVID-19 cases and healthcare capacity. That is
precisely what happened.
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
3
The “Bar Closure Order” refers only to the proclamation’s provisions affecting
bars. Other portions of the proclamation restricted gatherings to “no more than 50
people,” and mandated that “businesses or organizations . . . require all persons who enter
5
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Marshal published at opensafely.la.gov.” La. Exec. Dep’t, Proclamation No.
96 JBE 2020, § 2(B)(2), (D)(1) (July 23, 2020). The revised Fire Marshal
guidance restricted restaurants to “50% of the normal established capacity”
and noted that “[b]ar areas of restaurants shall be used for seating/serving
purposes only and shall not allow for social gatherings.” Additionally, the
guidance required that “[s]ervice in bar areas must include food items.”
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 La. Rev. Stat.
§ 26:71.1(1)(d). AR permits are primarily for restaurants and restaurant-bars:
the business must meet the statutory criteria for “restaurant
establishments,” including that its “average monthly revenue from food and
nonalcoholic beverages exceeds 50 percent of its total average monthly
revenue.” La. Rev. Stat. § 26:73(C)(1)(a).
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
the premises to wear a face covering.” Id. §§ 3, 4. Neither of those restrictions is challenged
here.
4
The ATC also provides “conditional” AR permits. These permits allow AG-
permitted entities to operate like an AR-permitted establishment if they meet the specified
requirements of “restaurant establishments.” See La. Rev. Stat. § 26:71.1(4).
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holding a Class A-General permit, with or without a food service permit . . .
shall be required to close.” A subsequent letter advised that bars could apply
for “Restaurant Conditional Permits,” or conditional AR permits, under
which they could “operate under the guidelines issued to restaurants.”
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,
5
The complaints sought declaratory and injunctive relief under Ex Parte Young and
damages based on the Due Process, Equal Protection, and Takings Clauses of the Fifth and
Fourteenth Amendments, as well as state-law takings claims. The bar owners then moved
for preliminary injunctive relief based on their due process and equal protection claims. On
appeal, they raise only their equal protection claim.
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but concluded that this differential treatment was not unconstitutional. In
finding that the Governor’s Bar Closure Order was rationally related to the
goal of protecting public health, both district courts primarily relied on the
testimony of Dr. Billioux, who provided the following justifications for
closing bars:
• 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 intoxica-
tion, 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 sig-
nificant 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 Ko-
rea and the United Kingdom, were successful in controlling
the spread of COVID-19 by shutting down “bars and night-
clubs.”
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,
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was consistent with recommendations from the White House Coronavirus
Task Force and guidance issued by other states. For example, one report
from the California Department of Health detailed the increased risks posed
by patrons in bar settings. The Governor testified that these reports similarly
informed the Bar Closure Order in Louisiana.
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 28 U.S.C. § 1292(a)(1). We review the denial of a preliminary
injunction for abuse of discretion. Moore v. Brown, 868 F.3d 398, 402 (5th Cir.
2017) (per curiam). “Factual findings are reviewed for clear error, while legal
conclusions are reviewed de novo.” Id. at 403. 6
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
6
The Eastern District of Louisiana also denied permanent injunctive relief. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the denial of permanent
injunctive relief for abuse of discretion under the same standards. Regions Bank of La. v.
Rivet, 224 F.3d 483, 488 (5th Cir. 2000).
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carried the burden of persuasion on all four requirements.” Dennis Melancon,
Inc. v. City of New Orleans, 703 F.3d 262, 268 (5th Cir. 2012) (internal
quotation marks and citation omitted).
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
7
At the time the bar owners filed suit at the end of July 2020, the Bar Closure Order
was set to expire on August 6, 2020. The Governor, in two subsequent proclamations,
renewed the challenged restrictions until September 11, 2020, which thus remained in
effect until after the district courts denied injunctive relief and the bar owners initiated this
appeal.
10
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moot if the challenged law has expired or been repealed.” Spell v. Edwards,
962 F.3d 175, 179 (5th Cir. 2020). Moreover, they say that each of the
appellant bars can now reopen, albeit still at lower capacity than restaurants.
The bar owners counter that the Phase 3 orders perpetuate the same
differential treatment between “bars” and “restaurants” as the challenged
Bar Closure Order. We agree that the bar owners’ equal protection claim is
not moot.
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
8
We heard oral argument on whether the Phase 3 restrictions mooted the appeal.
After this appeal was submitted, the Governor subsequently tightened restrictions once
again based on the “alarming and steep rise in cases, test positivity, hospitalizations, and
deaths,” and an increasing “third surge of COVID-19” within the state. La. Exec. Dep’t,
Proclamation No. 168 JBE 2020 (Nov. 24, 2020). Pursuant to this “modified” Phase 2
order, “bars” are prohibited from indoor, on-premises consumption but may remain open
for outdoor service with limited capacity, subject to the additional positivity rate and opt-
in requirements announced in Phase 3. Id. § 2(B). “Restaurants,” however, can continue
to provide indoor service at 50% capacity. Id. § 2(D)(1). These restrictions were
subsequently renewed and will remain in effect until January 13, 2021. La. Exec. Dep’t,
Proclamation No. 209 JBE 2020, § 7 (Dec. 22, 2020).
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replaced by the Governor’s phased reopening which permitted churches to
operate at greater capacity. Id. at 178. By the time of the appeal, churches
could operate at up to 50% capacity. Id. Consequently, because the stay-at-
home order and the challenged ten-person limit “expired,” we concluded
that the pastor’s claims were moot. Id. at 179.
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
9
The bar owners alternatively contend that their challenge to the Bar Closure is
not moot because it is capable of repetition yet evading review. In Spell, because the
Governor’s subsequent orders significantly expanded in-person gatherings available to
houses of worship, we held that it was “speculative, at best, that the Governor might
reimpose the ten-person restriction or a similar one.” Spell, 962 F.3d at 180. By contrast,
each of the Governor’s subsequent proclamations has made no similar progression with
respect to the differential treatment of bars and restaurants, as illustrated most recently by
the state’s return to a “modified” Phase 2.
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orders. Second, even under Jacobson and Abbott, they argue that the Bar
Closure Order’s differential treatment violates their equal protection rights.
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, ap-
plied 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 Fourteenth Amend-
ment right “to care for his own body and health.” Id. The Supreme Court
rejected the claim, emphasizing that “a community has the right to protect
itself against an epidemic of disease which threatens the safety of its mem-
bers.” Id. at 27. In upholding the state’s law, the Court concluded that judi-
cial review is limited to whether “a statute purporting to have been enacted
to protect the public health, the public morals, or the public safety, has no
real or substantial relation to those objects, or is, beyond all question, a
plain, palpable invasion of rights secured by the fundamental law.” Id. at 31.
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
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COVID-19 pandemic. Id. at 777, 780. The district court partially enjoined the
order as unconstitutionally imposing an “outright ban” on pre-viability
abortions in contravention of Supreme Court precedent. Id. at 781. A divided
panel of our court granted Texas’s petition for a writ of mandamus because
the district court “fail[ed] to apply (or even acknowledge) the framework
governing emergency exercises of state authority during a public health crisis,
established . . . in Jacobson.” Id. at 783.
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
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“constitute anything like an ‘outright ban’ on pre-viability abortion.” Id. at
789. As a result, the majority held that the order “cannot be affirmed to be,
beyond question, in palpable conflict with the Constitution.” Id. (quoting
Jacobson, 197 U.S. at 31). Additionally, the district court “failed to analyze
GA-09 under Casey’s undue-burden test.” Id. at 790.
Here, while both parties initially agreed that Jacobson and Abbott ap-
plied 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 disa-
gree 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
10
The bar owners’ attempt to change legal theories on appeal is not well taken.
Before the district courts, the bar owners asserted that the Bar Closure Order violated their
“fundamental” rights. On appeal, the bar owners now argue that their equal protection
claim is based solely on their “nonfundamental” rights, and thus Jacobson and Abbott do
not apply. While we review legal determinations de novo, “[t]he Court will not allow a
party to raise an issue for the first time on appeal merely because a party believes that he
might prevail if given the opportunity to try a case again on a different theory.” Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
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review when heightened scrutiny applies. Cf. Roman Catholic Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (applying strict
scrutiny to a church and synagogue’s challenge under the Free Exercise
Clause of the First Amendment to the New York Governor’s COVID-19
order restricting the number of in-person congregants). 11
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
11
Likewise, we similarly need not decide in this case the extent to which Roman
Catholic Diocese casts doubt, if any, on our court’s earlier reliance on Jacobson in cases
where heightened scrutiny does apply. And neither party asks us to do so here.
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burdens on abortion against its benefits in thwarting a public health crisis.”
954 F.3d at 778. Here, the bar owners challenge the Bar Closure Order under
the equal protection clause. In evaluating whether the Bar Closure Order’s
distinction between AG- and AR-permitted businesses was “beyond all
question, a plain, palpable invasion of rights,” both district courts highlighted
the rational justifications for this non-suspect classification; neither court
applied a “sub-rational” level of review. We would reach the same
conclusion applying settled rational basis review.
B. Equal Protection Claim
“The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction the
equal protection of the laws,’ which is essentially a direction that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216
(1982)).
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
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classify businesses based on whether they have an AG permit (“bars”) or an
AR permit (“restaurants”). The appellees deny that the Bar Closure Order
treats “bars” differently because even “restaurant bars are prohibited from
operating as a bar.” This misses the point. The incorporated Fire Marshal
guidance expressly restricts AG-permitted establishments while allowing
businesses with AR or conditional AR permits to reopen.
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.
12
The bar owners do not challenge that the Fire Marshal’s guidance is not
controlling or that the Governor’s incorporation of it violated state law. Nor, as both
district courts correctly noted, would such a claim be actionable in federal court. See
Pennhurst, 465 U.S. at 104.
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To start, we do not interpret the Governor’s statements so broadly.
The Governor did not disclaim that bars and restaurants are not treated
differently; rather, he indicated that it was unnecessary to “list out the type
of bars” by “permit type” because he intended all bars to cease “functioning
as a bar, whether it’s inside a restaurant or if it’s a stand-alone business.”
While the Governor argued that the proclamation itself does not classify
“bars” based on permit type, he acknowledged that the incorporated
guidance from the Fire Marshal imposed additional restrictions.
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
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monthly revenue requirements. Even if the Bar Closure Order’s
classifications are based solely on the premise that venues whose primary
purpose and revenue are driven by alcohol sales rather than food sales are
more likely to increase the spread of COVID-19, such a rationale, as
described by Dr. Billioux and the Governor and credited by both district
courts, is sufficiently “plausible” and not “irrational.” Nordlinger v. Hahn,
505 U.S. 1, 11 (1992). In sum, the Bar Closure Order’s differential treatment
of bars operating with AG permits is at least rationally related to reducing the
spread of COVID-19 in higher-risk environments. See also League of Indep.
Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125, 128 (6th Cir.
2020) (Michigan governor’s “rational speculation” that the COVID-19 risks
associated with gyms based on their environment, the proximity of its
patrons, and the primary exercise activities involved was sufficient to justify
closing indoor gyms while permitting other indoor facilities to remain open
(quoting Beach Commc’ns, 508 U.S. at 315)).
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
13
Presumably, any business that does so must comply with both the legislature’s
and ATC’s permitting requirements in addition to the applicable reopening requirements.
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nevertheless the rule that in a case like this perfection is by no means
required.” (internal quotation marks and citation omitted)).
* * *
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.
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Don R. Willett, Circuit Judge, concurring:
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-
1
In re Abbott, 954 F.3d 772 (5th Cir. 2020).
2
Id. at 784 (quoting Jacobson v. Commonwealth of Mass., 197 U.S. 11, 31 (1905)).
3
I am not the first to express doubts about Jacobson, generally, or In re Abbott’s
application of it, specifically. See Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603,
2608 (2020) (mem.) (Alito, J., dissenting from the denial of application for injunctive relief)
(“And in any event, it is a mistake to take language in Jacobson as the last word on what the
Constitution allows public officials to do during the COVID–19 pandemic.”); S. Bay
United Pentecostal Church v. Newsom, 959 F.3d 938, 943 n.2 (9th Cir. 2020) (Collins, J.,
dissenting) (“For the reasons stated, I am unable to agree with the Fifth Circuit’s
conclusion that Jacobson instructs that all constitutional rights may be reasonably restricted
to combat a public health emergency.” (internal quotation marks omitted)); see also Planned
Parenthood of Greater Tex. v. Kauffman, __ F.3d __, 2020 WL 6867212, at *29 n.1 (Nov.
23, 2020) (en banc) (Ho, J., concurring).
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century innovation rather than something enshrined in the Constitution,
pervades contemporary constitutional decisionmaking. 4 And In re Abbott, in
harkening back to Jacobson for the “governing framework” 5—indeed,
declaring that “Jacobson governs a state’s emergency restriction of any
individual right” 6—seems to whoosh past this formalist post-Jacobson
architecture that dictates different rules for different rights.
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.
4
See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2327 (2016) (Thomas,
J., dissenting) (“Though the tiers of scrutiny have become a ubiquitous feature of
constitutional law, they are of recent vintage.”).
5
In re Abbott, 954 F.3d at 795.
6
Id. at 778 n.1 (emphasis in original).
7
Id. at 787–88 (applying the undue-burden standard to a postponement of abortion
procedures).
8
Id. at 784 (quoting Jacobson, 197 U.S. at 31).
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Summing up: Stare decisis requires us to apply rational-basis review
(the most obeisant form of judicial scrutiny) to economic legislation like the
Bar Closure Order, but we should eschew any suggestion that Jacobson
requires us to do so.
24