Our Wicked Lady LLC v. Cuomo

Background

Our Wicked Lady LLC, doing business as “Our Wicked Lady,” and other plaintiffs brought the action against Andrew Cuomo in his official capacity as Governor of New York, New York State, Bill de Blasio in his official capacity as Mayor of New York City, and the City of New York. The opinion describes the plaintiffs as a group of 74 New York City businesses, 69 of which were bars and restaurants.

The plaintiffs challenged executive and city orders issued during the COVID-19 pandemic. Their February 5, 2021 motion sought a preliminary injunction, which is a temporary court order issued before a final judgment, against enforcement of New York State Executive Order 202.93, which limited indoor dining in New York City to 25% capacity, and New York City Executive Order No. 144, which prohibited indoor group fitness classes. The plaintiffs asserted claims under the federal and New York Due Process, Equal Protection, and Takings Clauses.

Legal standard

Because the requested injunction would require the government to change the existing situation and would provide substantially all of the relief sought, the court applied the more demanding standard for a mandatory preliminary injunction. The plaintiffs had to make a strong showing of irreparable harm and a clear or substantial likelihood of success on the merits. They also had to show that the public interest and balance of the equities favored an injunction.

Likelihood of success

The court held that the plaintiffs had not shown a likelihood of success on any claim, much less a clear and substantial likelihood.

For substantive due process, the court determined that the challenged orders did not burden a fundamental right. The businesses could continue operating with capacity limits and could conduct other activities, including takeout and delivery. The fitness centers could open, although they could not hold indoor group classes. The court therefore applied rational-basis review, which asks whether the government action is rationally related to a legitimate government interest. It held that limiting the number of people in enclosed spaces was rationally related to preventing COVID-19 transmission and that courts should defer to government decisions about safe density during a public-health crisis.

For procedural due process, the court held that the orders were legislative in nature because they applied prospectively to all restaurants and fitness centers in New York City. Legislative actions of this type are not subject to the notice-and-hearing requirements that apply to adjudicative government decisions.

For equal protection, the court held that the orders neither burdened a fundamental right nor targeted a suspect class. The court concluded that the restrictions were rationally related to preventing the spread of COVID-19. It rejected the plaintiffs’ arguments that the government had improperly treated New York City businesses differently from businesses in other areas or had classified the plaintiffs as “non-essential.”

For the Takings Clause claims, the court held that the government had not physically occupied the plaintiffs’ establishments. It also held that the restrictions were not a categorical taking because the plaintiffs could continue operating at limited capacity and through takeout and delivery. Although the restrictions had greatly affected the plaintiffs’ financial expectations, the court concluded that their temporary, negative character and their purpose of addressing the pandemic weighed against finding a regulatory taking.

Irreparable harm and public interest

The court held that the plaintiffs had not made the required strong showing of irreparable harm. The capacity limits were temporary and changing, and the plaintiffs could continue operating under the limits in effect. Because the court found that the plaintiffs were unlikely to succeed on their constitutional claims, it also rejected their argument that an alleged constitutional violation created a presumption of irreparable harm.

The court concluded that the balance of the equities and the public interest strongly favored the defendants. It reasoned that blocking the restrictions would give the plaintiffs all the relief they sought while creating a serious risk to public health during an ongoing threat to public safety.

Disposition

The court denied the plaintiffs’ February 5, 2021 motion for a preliminary injunction.