The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
FRANCIS STEFFAN HAYES, Case No. 1:20-cv-01332-CL
Plaintiff, ORDER AND OPINION
v.
STATE OF OREGON and KATE BROWN,
in her personal capacity,
Defendants.
AIKEN, District Judge:
Plaintiff, Francis Steffan Hayes, brings this action against the state of Oregon
and Governor Kate Brown. Plaintiff alleges numerous state and federal statues and
constitutional provision as the basis for this suit. As far as the Court can discern
from the complaint, plaintiff alleges that he was denied entry to a Coastal farm store,
presumably in White City, Oregon, by store employees because he refused to wear a
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face covering.1 Ultimately, he alleges that he was charged with “trespass” in
connection with incident. Compl. at 1.
In addition to requesting, inter alia, monetary damages in the amount of
$100,000 for himself and $21,000,000,000 to be split among every adult in the state
of Oregon, plaintiff also moves the Court for:
an immediate emergency restraining order / injunction against Kate
Brown and The State of Oregon from further enforcing ANY provisions
that were created under the fraudulent usurpation know[n] as executive
order 03-20, declaring an emergency that has never, in reality, existed
and does not exist now.
Id. at 4. (internal quotation marks omitted). The Court construes this specific request
as a motion for a temporary restraining order (“TRO”). For the reasons set forth
below, the motion is DENIED
LEGAL STANDARD
A TRO is an “extraordinary and drastic remedy.” Mazurek v. Armstrong, 520
U.S. 986, 972 (1997). The purpose of a TRO is to preserve the status quo and prevent
irreparable harm until a hearing may be held on the propriety of a preliminary
injunction. See Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir.
2006). The same general legal standards govern TROs and preliminary injunctions.
Fed. R. Civ. P. 65; New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345,
1347 n.2 (1977). A plaintiff seeking such relief must establish (1) a likelihood of
1 It is unclear who denied plaintiff entry to the store, as he only alleges that he
was “accosted by black mask wearing thugs claiming authority to deny him entry by
order of Kate Brown and refusing ANY exemptions.” Id.
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success on the merits; (2) a likelihood of irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in the plaintiff’s favor; and (4) a
preliminary injunction is in the public interest. Winter v. Nat’l Resources Def Council,
555 U.S. 7, 21 (2008). A court may not enter a preliminary injunction without first
affording the adverse party notice and an opportunity to be heard. Fed. R. Civ. P.
65(1)(2); People of State of Cal. ex rel. Van De Kamp v. Tahoe Regional Planning
Agency, 766 F.2d 1319, 1322 (9th Cir. 1985). By contrast, in an emergency TRO may
be entered without notice. See Fed R. Civ. P. 65(b)(l)(A) (restricting availability of ex
parte TROs to situations in which “immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be heard in opposition”).
DISCUSSION
Though not specifically pleaded, the Court assumes that plaintiff was affected
by the Statewide Mask, Face Shield, Face Covering Guidelines which were issued by
the Oregon Health Authority on July 24, 2020.2 https://sharedsystems.dhsoha.state.
or.us/DHSForms/Served/le2288k.pdf (last accessed on August 24, 2020). These
guidelines were promulgated by the Governor of the State of Oregon, Kate Brown, in
an ongoing effort to combat the indisputable effects of the pandemic caused by 2019
novel coronavirus (“COVID-19”). State and federal officials alike have recognized
2 Though plaintiff claims that he was refused any exemptions when he
attempted to enter the Coastal farm store without a mask, the Guidance specifically
orders businesses to provide accommodations to customers as required by state and
federal disability laws, state and labor laws, state and federal public accommodation
laws, and OHA public health guidance.
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that this outbreak represents a public health emergency. On March 3, 2020, the
President of the United States declared a state of emergency in response to the spread
of COVID-19 See Proclamation on Declaring National Emergency Concerning the
COVID-19 Outbreak, https://www.whitehouse.gov/presidential-actions/
proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-
covid-19-outbreak/ (last accessed August 12, 2020). Likewise, Governor Brown
declared a state of emergency in the State of Oregon in response to the pandemic on
March 8, 2020 in Executive Order 20-03. https://www.oregon.gov/gov/Documents/
executive_orders/eo_20-03.pdf/ (last accessed August 12, 2020). That Executive
Order and the state of emergency caused by COVID-19 have been twice extended on
May 1, 2020 and June 30, 2020. https://www.oregon.gov/gov/Documents/executive_
orders/eo_20-30.pdf/ (last accessed August 12, 2020).
Though the nature of his pleadings is unclear, for the purposes of resolving this
motion, the Court assumes that plaintiff is arguing that Oregon’s current face
covering restrictions violate his rights secured by the Fifth and Fourteenth
Amendments to the U.S. Constitution. The Court declines to address plaintiff’s
claims brought under state law, as those are likely barred by the Eleventh
Amendment. Further, the specific federal laws cited by plaintiff are criminal statutes
and provide no private right of action.
The Court finds that the granting extraordinary emergency relief requested by
plaintiff would be inappropriate in this case. First, the Court finds that plaintiff has
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failed demonstrate any likelihood of success on the merits or substantial questions
going to the merits. The Supreme Court “has distinctly recognized the authority of a
state to enact quarantine law and health law of every description.” Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905) (quotations omitted).
“According to settled principles, the police power of a state must be held to embrace,
at least, such reasonable regulations established directly by legislative enactment as
will protect the public health and public safety.” Id.
In Jacobson, the Supreme Court rejected a plaintiff’s argument that a
compulsory vaccination law violated his Fourteenth Amendment rights. Here,
plaintiff vaguely asserts that the present requirements restrict his liberty as
guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. The
Supreme Court explained in Jacobson, however, that:
the liberty secured by the Constitution of the United States to every
person within its jurisdiction does not import an absolute right in each
person to be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person is
necessarily subject for the common good. On any other basis organized
society could not exist with safety to its members. Society based on the
rule that each one is a law unto himself would soon be confronted with
disorder and anarchy.
Id. at 26. The Court concluded that:
Real liberty for all could not exist under the operation of a principle
which recognizes the right of each individual person to use his own,
whether in respect of his person or his property, regardless of the injury
that may be done to others. This [C]ourt has more than once recognized
it as a fundamental principle that persons and property are subjected to
all kinds of restraints and burdens in order to secure the general
comfort, health, and prosperity of the state[.] . . . The possession and
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enjoyment of all rights are subject to such reasonable conditions as may
be deemed by the governing authority of the country essential to the
safety, health, peace, good order, and morals of the community. Even
liberty itself, the greatest of all rights, is not unrestricted license to act
according to one’s own will. It is only freedom from restraint under
conditions essential to the equal enjoyment of the same right by others.
It is, then, liberty regulated by law.
Id. at 26-27.
At this early stage of the proceedings, the Court is persuaded against issuing
emergency injunctive relief and agrees with reasoning of numerous other courts
which have applied the principles outlined in Jacobsen and rejected similar claims.
See Robinson v. Attorney General, 957 F.3d 1171, 1182–83 (11th Cir. 2020); Altman
v. Cty. of Santa Clara, 2020 WL 2850291 (N.D. Cal. June 2, 2020); Antietam
Battlefield KOA v. Hogan, 2020 WL 2556496 (D. Md. May 20, 2020); Open Our Oregon
v. Brown, 2020 WL 2542861 (D. Or. May 19, 2020); PCG-SP Venture I LLC v. Newsom
(C.D. Cal. June 23, 2020); Geller v. De Blasio, 2020 WL 2520711 (S.D.N.Y. May 18,
2020); Elim Romanian Pentecostal Church v. Prikzker, 2020 WL 2517093 (7th Cir.
May 16, 2020); Spell v. Edwards, 2020 WL 2509078 (M.D. La. May 15, 2020); In re
Abbott, 954 F.3d 772 (5th Cir. April 7, 2020); Henry v. DeSantis, 2020 WL 2479447
(S.D. Fla. May 14, 2020); Cavalry Chapel of Bangor v. Mills, 2020 WL 2310913 (D.
Me. May 9, 2020); Cassell v. Snyders, 2020 WL 2112374 (N.D. Ill. May 3, 2020);
Legacy Church, Inc. v. Kunkel, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Cross
Culture Christian Ctr. v. Newsom, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Gish v.
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Newsom, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020); McGhee v. City of Flagstaff,
2020 WL 2308479 (D. Ariz. May 8, 2020).
Indeed, Chief Justice Roberts recently reiterated the need for judicial
deference to public health officials during a public health crisis. See S. Bay United
Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020). Noting the broad discretion of
the State to fashion responses to the present epidemic and emphasized the federal
judiciary’s limited role in overseeing those responses, he wrote:
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. When
those officials undertake[ ] to act in areas fraught with medical and
scientific uncertainties, their latitude must be especially broad. Where
those broad limits are not exceeded, they should not be subject to second-
guessing by an unelected federal judiciary, which lacks the background,
competence, and expertise to assess public health and is not accountable
to the people.
Id. (Roberts, C.J., concurring) (alterations in original) (internal citations and
quotations omitted).
The Court need not reach the ultimate question of whether the restrictions of
which plaintiff complains violate his constitutional rights in light of the framework
established in Jacobson. That question is better left to a more intensive analysis
after defendants have an opportunity to appear and file responsive pleadings. For
now, it is enough to find that plaintiff has failed to show a sufficient likelihood of
success on the merits which would justify the requested relief.
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The Court also finds that the irreparable injury factor weighs against granting
the requested relief. It is axiomatic that a moving party must demonstrate a
significant threat of impending irreparable injury, irrespective of the magnitude of
the injury. Big Country Foods, Inc. v. Bd. of Educ. of Anchorage Sch. Dist.,
Anchorage, Alaska, 868 F.2d 1085, 1088 (9th Cir. 1989). Here, plaintiff does not seek
to maintain the status quo in the face of an impending irreparable harm, rather he
seeks a sweeping mandatory injunction which would instead drastically alter the
status quo because of a harm which already occurred.
The remaining factors, the balance of the equities and the public interest,
“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418,
435 (2009.) The Court finds that these factors also weigh against granting a TRO.
The requested relief would invalidate every order made pursuant to the Governor’s
declaration of a public emergency which has been in place for months. The harm to
the public in granting such a TRO, which may result in more transmissions of
COVID-19 and more cases of serious illness and death, far outweighs any potential
harm identified in the complaint.
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CONCLUSION
For the reasons set forth above, plaintiff’s motion for a TRO (Doc. 1) and
Emergency Motion for Preliminary Injunction (Doc. 8) are DENIED.
IT IS SO ORDERED.
Dated this 1_2_t_h_ day of August 2020.
__________/s_/_A_n_n_ _A_i_k_e_n__________
Ann Aiken
United States District Judge
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