Pearson v. Pritzker

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE PEARSON et al.,

Plaintiffs,

v. No. 20-cv-02888

Judge Franklin U. Valderrama

GOVERNOR JAY ROBERT

PRITZKER, in his official capacity, and

STATE OF ILLINOIS,

Defendants.

MEMORANDUM OPINION AND ORDER

COVID-19 is a novel coronavirus that has affected nearly every aspect of

everyday life. From mask wearing to social distancing, it has changed the way we live

and interact with each other. On March 9, 2020, in response to the on-going COVID-

19 pandemic, the Governor of Illinois issued an emergency proclamation declaring

that the COVID-19 pandemic constituted a disaster in Illinois. At the time, the state

“had 11 confirmed cases of COVID-19, ‘an additional 260 persons under

investigation,’ and evidence of ‘community transmission in Illinois.’” Fox Fire Tavern,

LLC v. Pritzker, 161 N.E.3d 1190, 1192 (Ill. App. Ct. 2020) (quoting Proclamation No.

2020-38, 44 Ill. Reg. 4744 (Mar. 9, 2020)).1 As of May 29, 2020, COVID-19 had killed

1The Court may take “judicial notice of matters which are so commonly known within the

community as to be indisputable among reasonable men, or which are capable of certain

verification through recourse to reliable authority.” McCray v. Hermen, 2000 WL 684197, at

*2 n.1 (N.D. Ill. May 23, 2000) (quoting Green v. Warden, U.S. Penitentiary, 699 F.2d 364,

369 (7th Cir. 1983)). “Included in these matters are ‘proceedings in other courts, both within

and outside of the federal judicial system, if the proceedings have a direct relation to matters

at issue.’” Id. (quoting same); see also Ennenga v. Starns, 677 F.3d 766, 774 (7th Cir. 2012)

more than 100,000 people nationwide. S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in denial of application for

injunctive relief) (internal quotation marks and citations omitted). At that time, there

was no known cure, no effective treatment, and no vaccine. Id.

In response to the global pandemic COVID-19 created, government officials

have instituted numerous safety measures, which have restricted the movement of

individuals, which in turn, have visited financial hardships on businesses.

Plaintiffs George Pearson (Pearson), Steve Balich (Balich) (collectively,

Individual Plaintiffs), and plaintiffs Samantha L. Palya (Palya), Amanda Hamerman

(Hamerman), Michael Judge (Judge), Jeff Carpenter (Carpenter), John Brown

(Brown), and James Van Dam (Van Dam) (collectively, Business Owner Plaintiffs),

bring this individual and class action against defendants Governor Jay Robert

Pritzker (Governor Pritzker) and the State of Illinois (collectively, Defendants),

alleging that three Executive Orders Governor Pritzker issued to address the COVID-

19 pandemic violate the Taking Clause of the Fifth Amendment and Illinois

Constitution. R. 9, Am. Compl.2 Plaintiffs also bring claims under 42 U.S.C. § 1983

for substantive and due process violations. Id. Defendants move to dismiss the

Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and

(“Taking judicial notice of matters of public record need not convert a motion to dismiss into

a motion for summary judgment.”).

2Citations to the docket are indicated by “R.” followed by the docket number and, where

necessary, a page or paragraph citation.

12(b)(6). R. 18, Mot. Dismiss. For the following reasons, Defendants’ motion is

granted.

Background

Governor Pritzker, in response to the COVID-19 pandemic, issued an

emergency proclamation and a series of executive orders in the spring of 2020.

Specifically, on March 9, 2020, Governor Pritzker, acting under the authority granted

to him by the Illinois Emergency Management Agency Act (20 ILCS 3305/1 et seq.),

issued a disaster proclamation for the State of Illinois. Am. Compl. ¶ 28.3 On March

20, 2020, Governor Pritzker issued Executive Order 2020-10 (the March 20 Executive

Order) Id. ¶ 29. The March 20 Executive Order, among other things, ordered citizens

to stay at home at their place of residence and limited travel within the State. Id.

¶ 30.

On April 1, 2020, Governor Pritzker issued a second Executive Order (No.

2020-18) (the April 1 Executive Order). Am. Comp. ¶ 31. The April 1 Executive Order

extended the duration of the March 20 Executive Order to April 30, 2020. Id. On April

30, 2020, Governor Pritzker issued a third Executive Order (No. 2020-32) (the April

30 Executive Order) which extended the duration of the April 1 Executive Order to

May 30, 2020. Id. ¶ 32.4 Governor Pritzker ordered all non-essential businesses to

close, prohibited individuals from travel across the State, except essential travel, and

3The Court accepts as true all of the well-pleaded facts in the complaint and draws all

reasonable inferences in favor of the plaintiff. Platt v. Brown, 872 F.3d 848, 851 (7th Cir.

2017).

4The March 20 Executive Order, the April 1 Executive Order, and the April 30 Executive

Order are collectively referred to as “the Executive Orders.”

ordered residents to stay at home. Id. ¶ 33. The Executive Orders mandated that all

non-essential businesses immediately cease operations at their physical locations,

that their employees not work at these physical locations, and that these businesses

remain closed indefinitely, and for so long as the Executive Orders are extended and

in effect. Id. ¶ 36.

On May 13, 2020, Plaintiffs filed a class action complaint against Governor

Pritzker and the State of Illinois. R.1, Compl. The complaint has been amended and

the operative complaint contains four counts. Am. Compl.5 Business Owner Plaintiffs

bring three counts: Count I alleges a violation of the Takings Clause of the Fifth

Amendment (id. ¶¶ 57– 70); Count II alleges a violation of Substantive Due Process

under 42 U.S.C. § 1983 (id. ¶¶ 71– 79); and Count IV alleges a violation of Procedural

Due Process under 42 U.S.C. § 1983 (id. ¶¶ 89–99). Individual Plaintiffs bring one

count only, Count III alleging a violation of Substantive Due Process under 42 U.S.C.

§ 1983. Id. ¶¶ 80–88. In their global request for relief, Plaintiffs seek compensatory

damages, declaratory relief, an injunction, and several other forms of relief. Id. at 19–

20. Defendants move to dismiss Plaintiffs’ amended complaint pursuant to Rules

5Plaintiffs’ filings reveal a discrepancy of the exact identity of the plaintiffs to this action. The

caption in the Amended Complaint remained the same as the one in the original Complaint,

and identifies George Pearson, Steve Balich, Samantha L. Palya, Amanda Hamerman, and

Michael Judge as the five Individual Plaintiffs. Compl.; Am. Compl. However, the allegations

of the Amended Complaint reference George Pearson, Steve Balich, Samantha L. Palya,

Amanda Hamerman, James Van Dam, Jeff Carpenter, and John Brown as the seven

Individual Plaintiffs, and omit any reference to Michael Judge. Am. Compl. ¶¶ 20–26. Yet,

Plaintiffs’ Response only refers to the Individual Plaintiffs as the individuals identified in the

case caption. R. 23, Resp. For the purposes of this Opinion, the Court considers all eight of

these identified individuals as the Individual Plaintiffs.

12(b)(1) and 12(b)(6). Mot. Dismiss. For the reasons that follow, the Defendants’ Rule

12(b)(6) motion is granted.

Standard of Review

A Rule 12(b)(1) motion tests whether the court has subject matter jurisdiction.

Fed. R. Civ. P. 12(b)(1). Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570

F.3d 811, 820 (7th Cir. 2009). Standing is an “essential component of Article III’s case-

or-controversy requirement,” and the plaintiff “bears the burden of establishing

standing . . . in the same way as any other matter on which the plaintiff bears the

burden of proof . . . .” Apex Digital, Inc. v. Sears Roebuck & Co., 572 F.3d 440, 443

(7th Cir. 2009). In order to survive a Rule 12(b)(1) motion, the plaintiff bears the

burden of establishing subject matter jurisdiction. Ctr. for Dermatology & Skin

Cancer, Ltd. v. Burwell, 770 F.3d 586, 588–89 (7th Cir. 2014). When deciding a facial

challenge to subject matter jurisdiction—that is, when the defendant argues that the

plaintiff’s allegations as to jurisdiction are inadequate—“the district court must

accept as true all well-pleaded factual allegations, and draw reasonable inferences in

favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). But district

courts may also “look beyond the jurisdictional allegations of the complaint and view

whatever evidence has been submitted on the issue to determine whether in

fact subject matter jurisdiction exists.” Taylor, 875 F.3d at 853 (citing Apex Digital,

572 F.3d at 444). In that case, “no presumptive truthfulness attaches to plaintiff’s

allegations,” and the court is “free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case.” Apex Digital, 572 F.3d at 444 (internal

citations omitted).

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the

complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,

820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and

plain statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual

allegations, accepted as true, sufficient to “state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The allegations “must be enough

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The

allegations that are entitled to the assumption of truth are those that are factual,

rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.

Analysis

Defendants advance four primary arguments in support of their motion to

dismiss. First, Defendants argue that the Eleventh Amendment bars all claims for

damages and equitable relief against the State and Governor Pritzker in his official

capacity. Mot. Dismiss at 2. Second, Defendants contend that the Court lacks subject

matter jurisdiction over Plaintiffs’ request for prospective injunctive relief. Id. Third,

Defendants assert that Plaintiffs cannot state a viable claim under the Takings

Clause because the Governor’s actions did not constitute a taking under the United

States or Illinois Constitutions. Id. Finally, they argue that Plaintiffs fail to state a

claim for violation of Plaintiffs’ substantive or procedural due process rights. Id. The

Court evaluates Plaintiffs’ claims based on the nature of their requested relief.

I. Monetary Relief

Plaintiffs seek monetary damages for their lost revenue, profits, and costs. Am.

Compl. at 19, ¶¶ 1–3. Defendants first contend that Plaintiffs cannot bring a Section

1983 claim for damages against the State or Governor Pritzker for acting in his

official capacity as neither Governor Pritzker nor the State of Illinois is a “person”

subject to suit under Section 1983 for damages. R. 19, Memo. Dismiss at 6 (citing

Arizonans for Official English v. Ariz., 520 U.S. 43, 49 n.24 (1997); Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989); Kolton v. Frerichs, 869 F.3d 532, 535–36 (7th

Cir. 2017)). The Court agrees.

The Eleventh Amendment provides that “[t]he judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by

Citizens or subjects of any Foreign State.” U.S. CONST. amend XI. “The Eleventh

Amendment deprives federal courts jurisdiction to consider most suits against states.

State agencies and officials sued in their official capacities are ‘the state’ for Eleventh

Amendment purposes.” Olison v. Governor Ryan, 2000 WL 1263597, at *4 (N.D. Ill.

Sept. 5, 2000) (citing Will, 491 U.S. at 70; Kentucky v. Graham, 473 U.S. 159, 169

(1985)); see also Ind. Prot. and Advoc. Servs. v. Ind. Fam. and Soc. Servs. Admin., 603

F.3d 365, 370 (7th. Cir. 2010) (“If properly raised, the amendment bars actions in

federal court against a state, state agencies, or state officials acting in their official

capacities.”) (internal citations omitted). Furthermore, “state agencies and officials in

their official capacity cannot be sued under Section 1983 for damages.” Olison, 2000

WL 1263597, at *4 (internal citations omitted); see also Will, 491 U.S. at 71 (“Section

1983 provides a federal forum to remedy many deprivations of civil liberties, but it

does not provide a federal forum for litigants who seek a remedy against a State for

alleged deprivations of civil liberties. The Eleventh Amendment bars such suits

unless the State has waived its immunity.”).

Plaintiffs do not challenge the above-referenced case law regarding Section

1983 or the Eleventh Amendment, but instead insist that their suit is not one for

damages, but rather, one seeking to compel the State to award just compensation.6

Resp. at 7. Plaintiffs’ construction of their claims as constitutional violations does not

obscure that which is plain: this lawsuit seeks monetary damages from the State’s

treasury for Plaintiffs’ alleged financial losses occasioned by Governor Pritzker’s

6Plaintiffs’ Response fails to cite to any case law in support of their arguments. While

Plaintiffs mention a case known as the “Cedar Rust case” they fail to provide a citation for

that case and do not demonstrate how that case supports their arguments. Resp. at 3.

Accordingly, Defendants invite the Court to deem Plaintiffs’ arguments forfeited, and the

Court agrees. R. 26, Reply at 2 (citing Alioto v. Town of Lisbon, 651 F.3d. 715, 721 (7th Cir.

2011)); see also Pelfrense v. Vill. of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A

litigant who fails to press a point by supporting it with pertinent authority, or by showing

why it is sound despite a lack of supporting authority or in the face of contrary authority,

forfeits the point. We will not do his research for him.”) (internal citations omitted). Of course,

this does not mean that the Court accepts Defendants’ arguments with no critical analysis—

in this Opinion the Court evaluates the bases for dismissal presented to ensure they are

plausible. See Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999) (“If

[judges] are given plausible reasons for dismissing a complaint, they are not going to do the

plaintiff’s research and try to discover whether there might be something to say against the

defendants’ reasoning.”).

Executive Orders. The Eleventh Amendment, however, bars such suits. Therefore,

the Court grants Defendants’ motion and dismisses those claims.

II. Injunctive Relief

Plaintiffs, in addition to seeking monetary damages, also seek an order

“enjoining Governor Pritzker from enforcing his Executive Orders until such time as

a mechanism is enacted to provide just compensation for affected businesses and

appellate review.” Am. Compl. at 19, ¶ 5. Defendants again move to dismiss Plaintiffs’

claim for injunctive relief on the basis that such relief is also barred by the Eleventh

Amendment. Defendants also argue that, to the extent Plaintiffs seek prospective

relief, their claims based on expired Executive Orders are moot. The Court reviews

the mootness argument first, as it relates to the Court’s subject matter jurisdiction.

A. Mootness

If in fact Plaintiffs are seeking injunctive relief to prevent future harm—rather

than monetary damages—in that they request that this Court prohibit “Governor

Pritzker from enforcing his Executive Orders” (Am. Compl. at 19 ¶ 5), the Court

agrees with Defendants that Plaintiffs’ claim is moot (Mot. Dismiss at 9–10). Federal

courts are limited to deciding justiciable cases or controversies under Article III, and

therefore lack jurisdiction to hear non-justiciable cases, including cases that are moot.

See Maher v. F.D.I.C., 441 F.3d 522, 525 (7th Cir. 2006). A case is rendered moot “if

there is no possible relief which the court could order that would benefit the party

seeking it.” Id. (internal citations omitted). Mootness has been described as “the

doctrine of standing set in a time frame,” because if a plaintiff loses standing during

the course of litigation, that plaintiff’s claim is rendered moot. U.S. Parole Comm’n

v. Geraghty, 445 U.S. 388, 397 (1980). In other words, “[a] case is moot when it no

longer presents a live case or controversy.” Tobin for Governor v. Ill. State Bd. of

Elections, 268 F.3d 517, 528 (7th Cir. 2001).

The last Executive Order with which Plaintiff takes issue expired as of May

30, 2020. Am. Compl. ¶ 32. And the Supreme Court has long held that a change to a

challenged law (including termination of said law) renders a claim for respective relief

relating to that law to be moot. See Green v. Mansour, 474 U.S. 64, 67 (1985); Loc.

No. 8-6, Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Missouri, 361 U.S. 363,

367 (1960). Because the challenged Executive Orders are no longer in effect, any

claim for prospective relief is moot.

But it is true that federal courts may consider otherwise moot cases or

controversies if the questions involved are “capable of repetition, yet evading

review[.]” Moore v. Ogilvie, 394 U.S. 814, 816 (1969). This exception to the mootness

doctrine applies when “(1) the challenged action is too short in duration to be fully

litigated prior to its cessation or expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to the same action again.” Tobin

for Governor, 268 F.3d at 529. The Seventh Circuit has recognized that “the capable-

of-repetition doctrine applies only in exceptional situations, and generally only where

the . . . plaintiff can make a reasonable showing that he will again be subject to the

alleged illegality.” Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1995).

Plaintiffs contend that their claims are not moot because even after the April

30 Executive Order expired, businesses were again closed on a county-by-county

basis, and that Governor Pritzker’s Order “did not terminate, was not revoked, and

provides for application in the future should certain statistical reports again rise

above an arbitrary number.” Resp. at 7–8. However, as noted above, Plaintiffs again

cite to no authority in support of their arguments, and point to no allegations in the

Amended Complaint or facts in other documents of which the Court could take

judicial notice,7 that constitute a “reasonable showing” that they will again be subject

to an allegedly illegal Executive Order.8 Therefore, any claim for prospective relief

does not fall under the “capable-of-repetition” exception to mootness, and Plaintiffs’

claim for prospective injunctive relief must be dismissed for lack of subject matter

jurisdiction.

B. Eleventh Amendment Immunity

If, though, as Defendants suggest, Plaintiffs’ claim for injunctive relief is in

fact a claim for monetary damages, that claim is also barred by the Eleventh

7In fact, the State of Illinois’s Coronavirus Response webpage states that due to the

“continued decline in the rate of infection in new COVID-19 cases,” more businesses,

including restaurants, can begin opening. See Phrase 4: Revitalization, STATE OF ILLINOIS

CORONAVIRUS RESPONSE, https://coronavirus.illinois.gov/s/restore-illinois-phase-4 (last

visited Mar. 22, 2021).

8The Court agrees with Defendants that to the extent Plaintiffs seek injunctive relief relating

to a future executive order, such a claim is not ripe and also must be dismissed under Federal

Rule of Civil Procedure 12(b)(1). Mot. Dismiss at 9–10 (citing Abbott Lab’ys v. Gardner, 387

U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

Amendment. See generally Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.

1, 551 U.S. 701, 720 (2007) (finding that the plaintiff sought damages in her

complaint “which is sufficient to preserve our ability to consider the question”).

There are three, limited exceptions to the Eleventh Amendment bar against

suits against states. The first is consent—that is, a state may waive immunity and

agree to suit in federal court. Ind. Prot. and Advoc. Servs., 603 F.3d at 371. The second

is abrogation of the state’s immunity by a valid exercise of Congress’ powers. Id.

Plaintiffs do not assert either the first or second exceptions. The third is the doctrine

articulated by the Supreme Court in Ex parte Young, 209 U.S. 123 (1908), which

“allows private parties to sue individual state officials for prospective relief to enjoin

ongoing violations of federal law.” Council 31 of the Am. Fed’n of State, Cnty. and

Mun. Emps. v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012) (emphasis added) (internal

citations omitted). The rationale underlying this doctrine, known as the Ex parte

Young doctrine, is as follows: “Because an unconstitutional legislative enactment is

void, a state official who enforces that law comes into conflict with the superior

authority of the Constitution, and therefore is stripped of his official or representative

character and is subjected in his person to the consequences of his individual

conduct.” Id. (internal citations and quotations omitted)). Plaintiffs do not address

this exception in their Response, but the Court explains why it does not apply.

“Courts conduct a ‘straightforward inquiry’ into whether the complaint alleges

an ongoing violation of federal law and seeks federal relief properly characterized as

prospective.” Love v. Ill. Dep’t of Corr., 2020 WL 1237200, at *4 (N.D. Ill. Mar. 13,

2020) (quoting Verizon Md., Inc., v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645

(2002)). “An injunction is a forward-facing form of relief. It applies to ongoing or

imminent harm.” Id. While “[d]amages can look back,” injunctive relief must “look to

the present, or look forward.” Id. Accordingly, to fall under the Ex parte Young

doctrine, a plaintiff must seek prospective relief. See Eason v. Pritzker, 2020 WL

6781794, at *7–8 (N.D. Ill. Nov. 18, 2020).

It is on this distinction that Plaintiffs’ claim ultimately fails. On the face of the

Amended Complaint, Plaintiffs do not seek to restrain Governor Pritzker from any

ongoing unconstitutional conduct. Cf. Verizon Md., 535 U.S. at 645 (prayer for relief

that “state officials be restrained from enforcing an order in contravention of

controlling federal law[] clearly satisfies our straightforward [Ex parte Young]

inquiry”). In Papasan v. Allain, 478 U.S. 265, 277–78 (1986), the Supreme Court

explained the applicability of Ex parte Young as it relates to this issue specifically:

Young’s applicability has been tailored to conform as precisely as possible to

those specific situations in which it is necessary to permit the federal courts to

vindicate federal rights and hold state officials responsible to ‘the supreme

authority of the United States. Consequently, Young has been focused on cases

in which a violation of federal law by a state official is ongoing as opposed to

cases in which federal law has been violated at one time or over a period of

time in the past, as well as on cases in which the relief against the state official

directly ends the violation of federal law as opposed to cases in which that relief

is intended indirectly to encourage compliance with federal law through

deterrence or directly to meet third-party interests such as compensation. As

we have noted: Remedies designed to end a continuing violation of federal law

are necessary to vindicate the federal interest in assuring the supremacy of

that law. But compensatory or deterrence interests are insufficient to overcome

the dictates of the Eleventh Amendment.

(internal citations and quotations omitted). Plaintiffs seek to recoup money from the

State based on Governor Pritzker’s alleged violation of federal law that occurred over

a period of time in the past, and the Ex parte Young doctrine was not designed to

award Plaintiffs such requested compensation. On this basis, the Ex parte Young

doctrine does not except Plaintiff’s claim for injunctive relief from Eleventh

Amendment sovereign immunity.

Moreover, Plaintiffs do not seek prospective relief, which delivers another

defeat to the applicability of the Ex parte Young doctrine. The Amended Complaint,

which was filed after the expiration of the April 30 Executive Order, focuses on past

Executive Orders and alleges that Business Owner Plaintiffs were harmed financially

by said orders and seek “just compensation” for this allegedly unconstitutional

conduct. See generally Am. Compl. As Defendants correctly point out, Plaintiffs only

challenge the March 20 Executive Order, the April 1 Executive Order, and the April

30 Executive Order, the last of which expired on or around May 29, 2020. Memo.

Dismiss. at 9. Put simply, Business Owner Plaintiffs do not seek prospective

injunctive relief. Individual Plaintiffs, to the extent they are seeking injunctive relief

based on just compensation, fare no better, as Pearson and Balich asserted that they

were engaged in political fundraising on behalf of candidates who were running for

office in the November 2020 election cycle. Am. Compl. ¶¶ 20–21. Clearly, that has

passed. Regardless, though, Individual Plaintiffs do not assert that they seek any

prospective relief based on expired Executive Orders. What Plaintiffs really seek are

damages for their alleged harm occasioned by Governor Pritzker’s Executive Orders.

As discussed above, the Eleventh Amendment, however, bars Plaintiffs’ claims. The

Court finds that Council 31, 680 F.3d 875 (7th Cir. 2012) and McDonough Assocs.,

Inc., v. Grunloh, 722 F.3d 1043 (7th Cir. 2013) provide further guidance.

In Council 31, the plaintiff, a union representing state employees, sued the

governor and another state official in their official capacity to challenge the state’s

pay freeze, which the plaintiff claimed violated the Contracts Clause and Equal

Protection Clause of the U.S. Constitution by repudiating its collective bargaining

agreement. 680 F.3d at 878–80. The plaintiff requested injunctive relief to prevent

enforcement of the pay freeze, arguing that that its request fell under the Ex Parte

Young doctrine. Id. at 883. The Seventh Circuit disagreed, observing that the

plaintiff’s argument “ignores our holding that the eleventh amendment bars a claim

for injunctive relief that would require direct payments by the state from its treasury

for the indirect benefit of a specific entity.” Id. at 884 (internal quotations and

citations omitted). The Seventh Circuit made this finding even though the plaintiff’s

request for injunctive relief did not specifically require the court to direct payment of

funds out of the state’s treasury; because the “essence of the relief sought” constituted

such a payment, it did not constitute prospective relief and was barred by the

Eleventh Amendment. Id. at 882–84.

The Seventh Circuit reaffirmed this principle a year later in McDonough. In

that case, the plaintiff, an architecture and engineering firm, alleged that the Illinois

Department of Transportation (IDOT) owed it approximately $2 million dollars for

work it performed for IDOT. 722 F.3d at 1045–46. The plaintiff claimed that it was

facing bankruptcy and collapse if it did not receive the payments it alleged were due

from the state. Id. at 1045. It filed suit in federal court against IDOT officials

asserting a violation of the Due Process Clause of the Fourteenth Amendment. Id.

The District Court granted the plaintiff a temporary restraining order requiring state

officials to execute certain supplemental agreements with the plaintiff so that the

plaintiff could be paid for its past work. Id. at 1047. While complying with the

temporary restraining order, the defendants moved the District Court to dissolve or

decline to extend the temporary restraining order, arguing that it was a claim for

monetary damages against the State of Illinois and therefore barred by the Eleventh

Amendment. Id. The District Court denied their request, holding that the relief

granted fell under the Ex parte Young doctrine as an exception to sovereign

immunity. Id. at 1047–48. The Seventh Circuit reversed, observing that although it

is permissible under Ex Parte Young to “order state officials to act in a certain manner

going forward that may cost the state money to implement,” courts “may not . . . direct

a state to make payments to resolve a private debt or to make remedy a past injury to

a private party.” Id. at 1050–51 (emphasis added). The Seventh Circuit explained that

although the plaintiff had cloaked its claim in the language of federal due process, its

suit remained “in substance an effort to have a federal court order state officials to

make payments from the state treasury to remedy past alleged breaches of contract.”

Id. at 1045. The Seventh Circuit was not persuaded by the plaintiff’s creative styling

of its claim. Id. at 1052. Neither is the Court in this case.

The essence of Plaintiffs’ requested injunctive relief is money from the State of

Illinois. While Plaintiffs, like the plaintiff in McDonough, attempt to cloak their

dispute as one involving the Takings Clause and Due Process Clause of the United

States Constitution, once stripped of this garb, it is clear that what Plaintiffs really

seek is to recoup from the State of Illinois money they allegedly lost due to the

Executive Orders. Notably, again, Plaintiffs’ Response fails to address, much less

distinguish, the numerous cases cited by Defendants and fails to develop any cogent

arguments in opposition to Defendants’ motion. The Court grants Defendants’ motion

to dismiss is it relates to Plaintiffs’ claims seeking injunctive relief.

III. Declaratory Relief

Plaintiffs also request a declaratory judgment “that issuance and enforcement

of Governor Pritzker’s Executive Orders is an unconstitutional taking without just

compensation and a violation of the Due Process Clause of the Fourteenth

Amendment.” Am. Comp. at 19, ¶ 4. Even though the Court has denied injunctive

relief to Plaintiffs, it can still review Plaintiff’s claims relating to declaratory relief.

See Green, 474 U.S. at 72 (“[D]eclaratory relief may be available even though an

injunction is not.”). Yet, this request does not save Plaintiffs’ claims, as Plaintiffs still

cannot overcome the Eleventh Amendment. Defendants correctly point out that

Plaintiffs’ declaratory request, if granted, would force the State to pay compensation

from the State’s treasury for past wrong. Memo. Dismiss at 8. To the extent Plaintiffs

seek prospective relief (Resp. at 7), such relief would result in payment of just

compensation and compensatory damages to Plaintiffs. Id. at 9. The Seventh Circuit

has held that “declaratory ‘relief should not be awarded where the eleventh

amendment bars an award of monetary or injunctive relief; otherwise the

[declaratory] relief would operate as means of avoiding the amendment’s bar.”

Council 31, 680 F.3d at 883 (7th Cir. 2012) (quoting MSA Realty Corp. v. Ill., 990 F.2d

288, 295 (7th Cir. 1993)). Again, Plaintiffs fail to address Defendants’ arguments or

this incontrovertible legal authority in their Response.

The Court again finds that the Eleventh Amendment bars Plaintiffs’ claim for

declaratory relief. Therefore, the Court grants Defendants’ motion as to this claim,

and dismisses this claim. The Court need not address Defendants’ remaining

arguments.

Conclusion

For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss

[18]. Plaintiffs’ claims relating to prospective injunctive relief are dismissed under

Rule 12(b)(1) as moot. The Eleventh Amendment bars the remainder of Plaintiffs’

claims, which are dismissed under Rule 12(b)(6). Since Plaintiffs do not request leave

to file an amended complaint in their Response and the Court finds no basis to amend

Plaintiffs’ claims, as such attempts appear to be futile based on the Eleventh

Amendment, the Court dismisses Plaintiffs’ Amended Complaint [9] with prejudice.

This civil case is terminated.

Dated: March 24, 2021 KC nbloy Joh ——

United States District Judge

Franklin U. Valderrama

18