Petition for Writ of Certiorari — Golden Glow Tanning Salon, Incorporated, Petitioner v. City of Columbus, Mississippi

App. i

APPENDIX TABLE OF CONTENTS

Page

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, OPINION, 52 F.4th

974 (5th Cir. Nov. 8, 2022) ................................ App. 1

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF MISSISSIPPI, OPINION, 2021 WL 5225617 (N.D.

Miss. Nov. 9, 2021) .......................................... App. 20

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF MISSISSIPPI, ORDER GRANTING MOTION FOR

SUMMARY JUDGMENT (N.D. Miss. Nov. 9,

2021) ............................................................... App. 31

App. 1

52 F.4th 974

United States Court of Appeals, Fifth Circuit.

GOLDEN GLOW TANNING SALON,

INCORPORATED, Plaintiff–Appellant,

v.

CITY OF COLUMBUS, MISSISSIPPI,

Defendant–Appellee.

No. 21-60898

|

FILED November 8, 2022

Appeal from the United States District Court for the

Northern District of Mississippi USDC No. 1:20-CV103, Glen H. Davidson, District Judge.

Attorneys and Law Firms

Jim D. Waide, III, Esq., Waide & Associates, P.A., Tupelo, MS, for Plaintiff–Appellant.

Michael Chase, Mitchell, McNutt & Sams, P.A., Tupelo,

MS, Katherine Searcy Kerby, Esq., Kerby Law Firm,

L.L.C., Columbus, MS, for

Before Jones, Ho, and Wilson, Circuit Judges.

Opinion

Edith H. Jones, Circuit Judge:

Golden Glow Tanning Salon filed a civil rights

suit against the City of Columbus, which shut down

its business for seven weeks at the outset of the Covid19 pandemic. The district court granted the City’s

motion for summary judgment. Subsequent experience

App. 2

strongly suggests that draconian shutdowns were debatable measures from a cost-benefit standpoint, in

that they inflicted enormous economic damage without

necessarily “slowing the spread” of Covid-19.1 The balance of impacts was not well understood at the time,

however, and we are constrained to affirm.

I.

BACKGROUND

On March 14, 2020, the Governor of Mississippi

declared a state of emergency in response to the Covid19 pandemic. One week later, the City of Columbus,

Mississippi, promulgated an ordinance (“the City Ordinance”) declaring a civil emergency and including a

number of measures to counter the spread of the virus.

Section 2 of the City Ordinance subjected Golden Glow

and many other businesses to mandatory closure from

March 21 through May 9, 2020.2 The ordinance’s stated

purpose was to reduce excessive person-to-person

See Great Barrington Declaration, https://gbdeclaration.org

(last visited Oct. 24, 2022); Jonas Herby, Lars Jonung & Steve H.

Hanke, A Literature Review and Meta-Analysis of the Effects of

Lockdowns on Covid-19 Mortality, 200 STUDS. IN APPLIED

ECONS. 1 (2022); ALEX BERENSON, UNREPORTED TRUTHS

ABOUT COVID-19 AND LOCKDOWNS (2020).

2

Other businesses subject to closure included “bars, nightclubs, meetings of fraternal and civic organizations, child care facilities, bowling alleys, recreational facilities, skating rinks,

tattoo parlors, gyms, barbershops, hair/beauty and nail . . . salons, spas, convention centers, community centers, and parks.”

The City Ordinance also restricted “all churches, temples and

places of worship, assemblages and gatherings” to “no more than

10 people.”

1

App. 3

contact in order to slow the spread of Covid-19. Violations were punishable by fine or imprisonment.

An owner of Golden Glow told the mayor and two

city council members that his tanning business could

operate without person-to-person contact and that no

more than two people needed to be in the business at

any one time. The City made no exception for the salon.

On May 20, 2020, Golden Glow filed suit under 42

U.S.C. § 1983 against the City, alleging that the City

Ordinance violated the Equal Protection Clause and

constituted a taking under the Fifth Amendment.3 The

district court granted summary judgment for the City.

Golden Glow timely appealed.

II.

DISCUSSION

This court “reviews the district court’s grant of

summary judgment de novo, applying the same standards as the district court.” Greater Houston Small

Taxicab Co. Owners Ass’n v. City of Houston, 660 F.3d

235, 238 (5th Cir. 2011) (internal quotation omitted). A

party is entitled to summary judgment “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56. See also Celotex

Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552, 91 L.Ed.2d 265 (1986).

Golden Glow also asserted unreasonable seizure and due

process claims, but those are not before this court.

3

App. 4

Golden Glow initially contends that the City Ordinance violated equal protection by treating tanning salons differently from churches, Wal-Marts, and liquor

stores. The salon also contends that the shutdown constituted a per se taking under the Fifth Amendment,

for which Golden Glow is entitled just compensation.

A.

1.

Equal Protection

”Similarly Situated”

To establish an equal protection claim, Golden

Glow must first show that it was treated differently

from another similarly situated business. See Tex. Ent.

Ass’n v. Hegar, 10 F.4th 495, 513 (5th Cir. 2021); see

also Hines v. Quillivan, 982 F.3d 266, 272–73 (5th Cir.

2020). “Similarly situated” means “in all relevant respects alike.” Tex. Ent. Ass’n, 10 F.4th at 513 (quoting

Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326,

2331, 120 L.Ed.2d 1 (1992)) (sports bars featuring

scantily clad waitresses were not similarly situated to

erotic clubs under Texas law regulating sexually oriented businesses); see also Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d 456, 468 (5th Cir. 2021) (Covid-19

orders permitting restaurants to reopen but requiring

bars to remain closed treated similarly situated businesses differently).

To determine what businesses are similarly situated to tanning salons, we must consider “the full variety of factors that an objectively reasonable . . .

decisionmaker would have found relevant” when making the classification. Stratta v. Roe, 961 F.3d 340, 360

App. 5

(5th Cir. 2020) (alteration in original) (quoting Lindquist v. City of Pasadena Tex., 669 F.3d 225, 234 (5th

Cir. 2012)) (expounding upon “similarly situated” in

class-of-one equal protection claims). “[T]he inquiry is

case-specific.” Lindquist, 669 F.3d at 234. For example,

this court has held that two seemingly identical bars,

located next to each other and selling wine and beer,

were not similarly situated as to liquor permits where

one establishment was grandfathered with more generous terms than were available to the other under a

subsequent local ordinance. See Beeler v. Rounsavall,

328 F.3d 813, 817 (5th Cir. 2003).

First, there are similarities between tanning salons and the other businesses shut down by the City

Ordinance. Each class of shut-down business provides

recreational, social, or, as some would say, “non-essential” services; the clientele typically spend more than a

few minutes at the location; and the likelihood of close

person-to-person contact may pose risks. Tanning salons fit squarely within this mold. They provide a

largely aesthetic service, and their clientele typically

spend at least 15 minutes onsite. Even though Golden

Glow contends that tanning salons can be modified to

avoid close contact between customer and employee,

the customer must spend more than a few minutes in

a small, enclosed space while partially clothed.

Second, Golden Glow can rationally be differentiated from churches, large retailers like Wal-Mart, and

liquor stores, none of which were closed by the City

Ordinance. As the district court explained, those

three comparators “provide different services,” “are in

App. 6

different positions,” “and do not present the same

health and safety concerns”; they are “simply not similarly situated.”

We agree with the district court’s reasoning, at

least with regard to churches and Wal-Marts. Under a

public health ordinance, churches and Wal-Marts are

not “in all relevant respects alike” to tanning salons for

equal protection purposes. Churches enjoy special protection under the First Amendment. Indeed, to treat

churches any worse than secular businesses would

likely run afoul of the Constitution. See Roman Cath.

Diocese of Brooklyn v. Cuomo, ___ U.S. ___, 141 S. Ct.

63, 68, 208 L.Ed.2d 206 (2020) (per curiam). Churches

are different in kind from tanning salons and are not

similarly situated under the City Ordinance.

Additionally, while large retailers like Wal-Mart

offer some social or recreational services, they are important suppliers of an abundance of necessary goods.

True, Wal-Marts and tanning salons both sell artificial

tanners. Even so, stores with partially similar inventories are not necessarily similarly situated. See Beeler,

328 F.3d at 817. Golden Glow has not shown that WalMarts and tanning salons are “in all relevant respects

alike,” that is, that Wal-Marts offer predominantly social or recreational services and present the same

health and safety concerns as the City thought problematic for tanning salons.

Liquor stores, however, may present a close call as

to certain relevant similarities with tanning salons.

Neither business offers an essential service to the

App. 7

community.4 As with tanning salons, the actual transaction between a customer and clerk may take only

a few seconds. Moreover, both establishments can operate without close person-to-person contact. But a

defining feature of the tanning salon, and a distinguishing characteristic from the liquor store, is that

customers disrobe and occupy a small space for fifteen

minutes or more. In an abundance of caution, we assume they are similar.

2.

Rational Basis Review

The next task is to determine the “appropriate

level of scrutiny for our review.” Big Tyme Invs., 985

F.3d at 468. Rational basis review applies to legislative

classifications unless the “classification impermissibly

interferes with the exercise of a fundamental right or

operates to the peculiar disadvantage of a suspect

class,” in which case, strict scrutiny applies. Mass. Bd.

of Ret. v. Murgia, 427 U.S. 307, 312, 96 S. Ct. 2562,

2566, 49 L.Ed.2d 520 (1976) (per curiam) (footnotes

omitted). Golden Glow argues that the City Ordinance

should be subject to strict scrutiny because it deprives

certain business owners of a fundamental right—

namely, the right to work.

The Supreme Court does not now recognize a fundamental right to work and has consistently applied

The City makes a strained argument that liquor stores provide a necessary service because they supply alcohol to alcoholics.

This is not a reasonable ground for considering liquor stores any

more “essential” than tanning salons.

4

App. 8

rational basis review “to state legislation restricting

the availability of employment opportunities.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153,

1162, 25 L.Ed.2d 491 (1970) (refusing to apply a

heightened standard of review even to a law restricting

“the most basic economic needs of impoverished human beings”). As the Court put it in Conn v. Gabbert,

“the liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized

due process right to choose one’s field of private employment, but a right which is nevertheless subject to

reasonable government regulation.” 526 U.S. 286, 291–

92, 119 S. Ct. 1292, 1295–96, 143 L.Ed.2d 399 (1999).

Accordingly, rational basis review applies to this dispute.5

Under this standard, a governmental classification “will be upheld ‘if there is a rational relationship

between the disparity of treatment and some legitimate governmental purpose.’ ” Greater Houston Small

Taxicab, 660 F.3d at 239 (quoting Heller v. Doe, 509 U.S.

Golden Glow also attempts to claim strict scrutiny by arguing that the City Ordinance violates the Establishment Clause

and thus “impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” Duarte v. City of Lewisville,

858 F.3d 348, 354 (5th Cir. 2017). Golden Glow first raised this

claim in summary judgment briefing, but the district court did not

address it in the opinion granting summary judgment. Even if the

claim was not waived for late filing, see Bye v. MGM Resorts Int’l,

Inc., 49 F.4th 918, 925–27 (5th Cir. 2022), it is meritless. That

religious exercise and assembly are granted specific constitutional protection is not a back-door means to argue that secular

organizations are entitled to be treated the same by regulations;

the Constitution created the difference.

5

App. 9

312, 320, 113 S. Ct. 2637, 2642, 125 L.Ed.2d 257

(1993)). This “differential treatment is justified by any

reasonably conceivable state of facts.” Id. (internal

quotation omitted). But the government “may not rely

on a classification whose relationship to an asserted

goal is so attenuated as to render the distinction arbitrary.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 446, 105 S. Ct. 3249, 3258, 87 L.Ed.2d 313 (1985).

Golden Glow contends that the City Ordinance

created an arbitrary distinction between tanning salons and liquor stores that bore no rational relationship to public health given the salon’s ability to operate

safely and without customer contact. The City responds that tanning salons, when compared to liquor

stores, were not “so important to society that the benefits of continued operations . . . outweigh[ed] the risks

of spreading the virus.” The City rationalizes that the

length of time spent in a tanning bed as compared to a

liquor store raised the probability that the virus was

more likely to spread in a tanning salon.

This proffered reason is not arbitrary. See Big

Tyme Invs., 985 F.3d at 469 (shutting down bars but

leaving restaurants open to reduce the spread of

Covid-19 was not irrational). Further, this conclusion

is not altered by Golden Glow’s contention that it could

have maintained a safer environment than could liquor stores. Under rational basis review, overinclusive

and underinclusive classifications are permissible, as

is some resulting inequality. See Vance v. Bradley, 440

U.S. 93, 108, 99 S. Ct. 939, 948, 59 L.Ed.2d 171 (1979);

Heller, 509 U.S. at 321, 113 S. Ct. at 2643. The City

App. 10

Ordinance may have been overinclusive in the absence

of exceptions for safe and sterile tanning salons, and

underinclusive for failing to shut down every similarly

situated business. But such imperfections do not make

a law supported by at least one “conceivable basis” an

irrational one. F.C.C. v. Beach Comm’s, Inc., 508 U.S.

307, 315, 113 S. Ct. 2096, 2102, 124 L.Ed.2d 211 (1993)

(internal quotation omitted). Golden Glow’s equal protection claim fails rational basis review.

B.

Taking

The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, guarantees that private property shall not “be

taken for public use, without just compensation.” U.S.

CONST. amend. V. The physical appropriation of private property by the government is the “clearest sort

of taking.” Cedar Point Nursery v. Hassid, ___ U.S. ___,

141 S. Ct. 2063, 2071, 210 L.Ed.2d 369 (2021) (quoting

Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct.

2448, 2457, 150 L.Ed.2d 592 (2001)). And a physical

appropriation resulting from government regulation is

“no less a physical taking.” Id. at 2072. Such regulation

constitutes a “per se taking.” Id.

A per se taking also occurs in the “rare situation[ ]”

“where regulation denies all economically beneficial or

productive use of land.” Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1015, 1016–17, 112 S. Ct. 2886, 2893–

94, 120 L.Ed.2d 798 (1992) (positing that “total deprivation of beneficial use is, from the landowner’s point

App. 11

of view, the equivalent of a physical appropriation”).

But when the government “instead imposes regulations that restrict an owner’s ability to use his own

property,” the “flexible test developed in Penn Central”

applies. Cedar Point Nursery, 141 S. Ct. at 2071–72

(emphasis added). That balancing test weighs “factors

such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.”

Id. at 2072 (quoting Penn Central Transp. Co. v. N.Y.C.,

438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L.Ed.2d 631

(1978)).

Golden Glow argues that the closure of the salon

was a per se taking because it amounted to both a physical invasion under Cedar Point Nursery and a total

deprivation of productive use under Lucas. Cedar Point

Nursery involved a California regulation that granted

to labor organizations a “right to take access to an agricultural employer’s property in order to solicit support for unionization.” Id. at 2069. Access was required

for up to three hours per day, 120 days per year. Id. The

Court held that the “right to take access” amounted to

a “per se physical taking” because it appropriated “for

the enjoyment of third parties the owners’ right to exclude,” which “is ‘one of the most treasured’ rights of

property ownership.” Id. at 2072, 2080 (citation omitted). Cedar Point Nursery does not apply here because

App. 12

the City Ordinance did not authorize physical intrusions onto Golden Glow’s property.6

Lucas is also inapposite. There, the Supreme

Court held that a statute barring the erection of any

permanent habitable structures on certain beachfront

lots could constitute a taking because the land had

“been rendered valueless.” 505 U.S. at 1017, 1020, 112

S. Ct. at 2896.7 But the Court also affirmed that landowners are not entitled to compensation when they are

prevented from using their property for only some productive purposes. Id. at 1015–19, 112 S. Ct. at 2894–

96. Here, the closure of the salon constitutes a deprivation of some economically productive uses (i.e., the

uses forbidden by the Ordinance’s Section 2). Nothing

in the record supports the conclusion that the City Ordinance rendered the entire property “valueless.” The

district court was correct to find that there had been

no per se taking.8

Golden Glow speculates that the City would have padlocked the salon’s doors had Golden Glow refused to comply.

There is no basis for this conclusion in the record. The City Ordinance penalized violations with fines and/or imprisonment.

7

In footnote 8, Justice Scalia acknowledged that a landowner with even a 95% loss cannot “claim the benefit” of this “categorial formulation.” The Penn Central test would instead apply

in such a case. Lucas, 505 U.S. at 1019 n.8, 112 S. Ct. at 2895 n.8.

8

Golden Glow devotes one paragraph of its appellate brief to

the argument that a regulatory taking occurred under the Penn

Central balancing test. That argument is waived on appeal because Golden Glow did not argue Penn Central before the district

court. See Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 257

n.15 (5th Cir. 2008); see also Little v. Liquid Air Corp., 37 F.3d

1069, 1071 n.1 (5th Cir. 1994) (en banc) (per curiam).

6

App. 13

For the foregoing reasons, we AFFIRM the judgment.

James C. Ho, Circuit Judge, concurring:

The Supreme Court has recognized a number of

fundamental rights that do not appear in the text of

the Constitution. But the right to earn a living is not

one of them—despite its deep roots in our Nation’s history and tradition. Governing precedent thus requires

us to rule against the countless small businesses, like

Plaintiff here, crippled by shutdown mandates imposed by public officials in response to the COVID-19

pandemic. Cases like this nevertheless raise the question: If we’re going to recognize various unenumerated

rights as fundamental, why not the right to earn a living?

*

*

*

The COVID-19 pandemic triggered “one of the

broadest exercises of state power over individuals in

the country’s history.” Eugene Kontorovich, Lochner

Under Lockdown, 2021 U. CHI. LEGAL F. 169, 182

(2021). Millions of wage earners and small business

owners watched helplessly as public officials claimed

the “extraordinary power to force people from their

chosen occupations, destroy vast investment and reliance interests, and make millions dependent on government assistance”—marking a “radical departure

from prior practice, and perhaps prior imagination, of

App. 14

the scope, intensity, and duration of government power

over private business.” Id.

It was only by the grace of government that we

would eventually begin our return to normalcy. That’s

because our current law of unenumerated rights prioritizes non-economic activities over economic endeavors.

A principled approach to the Constitution can take

one of two forms: We can enforce only those rights that

are expressly enumerated in the Constitution. Or we

can recognize a broader range of fundamental rights,

including those not expressly stated in the Constitution, by appealing to some principle not explicit in the

text.

The Supreme Court has taken the latter approach.

It has long said that it will recognize “those fundamental rights and liberties which are, objectively, deeply

rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were

sacrificed.” Washington v. Glucksberg, 521 U.S. 702,

720–21, 138 L.Ed.2d 772 (1997) (cleaned up). And it reaffirmed this approach earlier this year. See Dobbs v.

Jackson Women’s Health Org., ___ U.S. ___, 142 S. Ct.

2228, 2242, 2246, 213 L.Ed.2d 545 (2022).

Under the Court’s approach to unenumerated

rights, we privilege a broad swath of non-economic human activities, while leaving economic activities out in

the cold. Scholars have suggested, however, that this

may get things backwards. After all, if anything, “the

App. 15

right to pursue callings and make contracts . . . have

better historical grounding than more recent claims of

right that have found judicial favor.” James W. Ely Jr.,

“To Pursue Any Lawful Trade or Avocation”: The Evolution of Unenumerated Economic Rights in the Nineteenth Century, 8 U. PA. J. CONST. L. 917, 953 (2006)

(emphasis added). See also, e.g., TIMOTHY SANDEFUR, THE RIGHT TO EARN A LIVING: ECONOMIC

FREEDOM AND THE LAW (2010); David E. Bernstein, The Due Process Right to Pursue a Lawful Occupation: A Brighter Future Ahead?, 126 YALE L.J. F. 287

(2016); Steven G. Calabresi & Larissa C. Leibowitz,

Monopolies and the Constitution: A History of Crony

Capitalism, 36 HARV. J.L. & PUB. POL’Y 983 (2013);

Timothy Sandefur, The Right to Earn a Living, 6 Chap.

L. Rev. 207 (2003).

For over a century before our Founding, English

courts protected the right to pursue one’s occupation

against arbitrary government restraint. See, e.g., 1

WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND 415 (“At common law

every man might use what trade he pleased.”);

SANDEFUR, supra, at 18–23; Calabresi & Leibowitz,

supra, at 989–1003. This right emerged out of the

struggles between the Crown and the courts over the

problem of monopoly—a term that was understood at

the time to mean any “company insulated from competition by a special legal privilege which barred others

from competing.” Sandefur, supra, at 219–20. The

Crown attempted to confer special privileges by allowing only a select few to practice certain occupations.

App. 16

See SANDEFUR, supra, at 20–21; Calabresi &

Leibowitz, supra, at 996–1003. English courts responded with hostility to such efforts. For example,

Lord Chief Justice of England Edward Coke observed

that “the common law abhors all monopolies, which

prohibit any from working in any lawful trade.” The

Case of the Tailors, &c. of Ipswich, 77 Eng. Rep. 1218,

1219 (K.B. 1615). Eventually, Parliament enacted the

Statute of Monopolies in 1623, prohibiting monopolies

while allowing exceptions for patentable inventions.

See SANDEFUR, supra, at 20–21; Calabresi &

Leibowitz, supra, at 996–1003. See also Bernstein, supra, at 288 (describing the “ancient Anglo-American

constitutional tradition opposed to governmental

grants of monopoly power to aid favored businesspeople and exclude others”) (collecting authorities).

This aversion to monopolies was brought to the

American colonies. The Massachusetts Body of Liberties of 1641 contained an express prohibition on monopolies, stating that “[n]o monopolies shall be granted

or allowed amongst us, but of such new Inventions that

are profitable to the Countrie, and that for a short

time.” See also Michael Conant, Antimonopoly Tradition Under the Ninth and Fourteenth Amendment:

Slaughter-House Cases Re-Examined, 31 EMORY L.J.

785, 797 (1982). And later, members of the Founding

generation agreed on the fundamental importance of

the right to pursue one’s occupation. Benjamin Franklin wrote that “[t]here cannot be a stronger natural

right than that of a man’s making the best profit he

can of the natural produce of his lands.” Causes of the

App. 17

American Discontents before 1768, in BENJAMIN

FRANKLIN: WRITINGS 613 (Lemay ed., 1987).

George Mason authored the Virginia Declaration of

Rights and included an express provision securing “the

enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” VA. DECL. OF RIGHTS § 1

(1776). See SANDEFUR, supra, at 24. Mason would

later oppose the Constitution precisely because he

feared that, absent express protections, “Congress may

grant monopolies in trade and commerce.” 1 DEBATES

ON THE ADOPTION OF THE FEDERAL CONSTITUTION 496 (Jonathan Elliot, ed. 1866). See generally

Conant, supra, at 801. In his writings to Thomas Jefferson about the Bill of Rights, James Madison noted

that monopolies “are justly classed among the greatest

nuisances in government.” Letter from James Madison

to Thomas Jefferson (Oct. 17, 1788), in 14 THE PAPERS OF THOMAS JEFFERSON 21 (Princeton 1958).

And Jefferson agreed. In his public and private writings, Jefferson “attach[ed] as much importance to the

English constitutional immunity from grants of monopoly as he did those privileges and immunities

which eventually appeared in the First Amendment.”

Conant, supra, at 800. See also id. at 799–800 (same).

Similar sentiments were expressed in the years

leading up to the Civil War and the Reconstruction

Amendments. In his debates with Stephen Douglas,

Abraham Lincoln emphasized the fundamental importance of the right to exercise one’s labors: “In the

right to eat bread, without leave of anybody else, which

App. 18

his own hand earns, he is my equal and the equal of

Judge Douglas, and the equal of every living man.” The

Ottawa Debate, in THE COMPLETE LINCOLNDOUGLAS DEBATES OF 1858 117 (Angle ed., 1991).

Representative John Bingham, one of the primary

drafters of the Fourteenth Amendment, later explained that “our own American constitutional liberty

. . . is the liberty . . . to work an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure

in the enjoyment of the fruits of your toil.” Cong. Globe,

42nd Cong., 1st Sess. App. 86 (1871) (statement of Rep.

Bingham). The Supreme Court echoed these sentiments, observing that “[t]he right to work for a living

in the common occupations of the community is of the

very essence of the personal freedom and opportunity

that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41, 36

S.Ct. 7, 60 L.Ed.2d 131 (1915). See also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed.2d

1042 (1923) (recognizing the right “to engage in any of

the common occupations of life”).

*

*

*

The First Amendment guarantees the freedom of

speech and religion. But the meaningful exercise of

those freedoms often requires the expenditure of resources. The Fourth Amendment secures the people in

their houses, papers, and effects, and the Fifth Amendment protects property from taking without just compensation. But it’s virtually impossible for most

citizens to obtain property without an income.

App. 19

In short, the right to engage in productive labors

is essential to ensuring the ability of the average

American citizen to exercise most of their other rights.

Cf. JAMES W. ELY JR., THE GUARDIAN OF EVERY

OTHER RIGHT: A CONSTITUTIONAL HISTORY OF

PROPERTY RIGHTS (2007).

So it’s not surprising that various scholars have

determined that the right to earn a living is deeply

rooted in our Nation’s history and tradition—and

should thus be protected under our jurisprudence of

unenumerated rights.

But that is for the Supreme Court to determine.

See, e.g., Pet. for Writ of Certiorari in Tiwari v. Friedlander, No. 22-42 (U.S.). In the meantime, governing

precedent requires us to affirm. Accordingly, I concur.

App. 20

2021 WL 5225617

Only the Westlaw citation is currently available.

United States District Court, N.D.

Mississippi, Aberdeen Division.

GOLDEN GLOW TANNING SALON, INC. Plaintiff

v.

CITY OF COLUMBUS, MISSISSIPPI, Defendant

CAUSE NO. 1:20-CV-103-GHD-DAS

|

Signed 11/09/2021

Attorneys and Law Firms

Jim D. Waide, III, Waide & Associates, PA, Tupelo, MS,

for Plaintiff.

Katherine S. Kerby, Kerby Law Firm, LLC, Columbus,

MS, for Defendant.

OPINION GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

GLEN H. DAVIDSON, SENIOR UNITED STATES

DISTRICT JUDGE

This matter arises from a Complaint by the Plaintiff in which it seeks to recover damages from alleged

violations of the Fourth, Fifth, and Fourteen Amendments of the United States Constitution and for” a violation of Section 17 of the Mississippi Constitution [1,

at 1]. The Plaintiff is a Mississippi corporation that

provides artificial tanning services [1, at ¶ 1]. The Defendant is a political subdivision of the State of Mississippi [1, at ¶ 2].

App. 21

The Plaintiff ’s Complaint arises out of an Ordinance enacted by the Defendant [1, at 4-5]. The Ordinance mandated the temporary closure of the

Plaintiff ’s business due to the COVID-19 pandemic [14, at 3]. The Ordinance went into effect at 5 p.m. on

March 21, 2020 [Id.]; the Plaintiff was allowed to reopen its business on May 9, 2020 [1, at ¶ 16]. The Plaintiff alleges that the Ordinance in effect amounted to a

taking of the Plaintiff ’s business for public use without

just compensation [1, at ¶¶ 14, 17, 23]. It further alleges that the Ordinance violates the Equal Protection

Clause of the Fourteenth Amendment [1, at ¶ 24] and

is an unreasonable seizure in violation of the Fourth

and Fourteenth Amendments of the U.S. Constitution.

It likewise argues that the Defendant’s actions violated the Plaintiff ’s procedural and substantive due

process rights [1, at ¶¶ 27-28].

Presently before the Court is the Defendant’s Motion for Summary Judgment [26]. The Plaintiff has

filed its Response to the Defendant’s Motion [31], and

the Defendant has filed its Reply [33]. Thus, the matter

is ready for review.

For the reasons stated herein, the Defendant’s Motion for Summary Judgment [26] is GRANTED.

I.

Factual Background

The Court is well aware of the ongoing COVID-19

pandemic, and the facts of this historic and deadly disease have become both well-documented and widely

known. Nevertheless, a few pertinent details bear

App. 22

repeating. As the Plaintiff notes, the World Health Organization declared the COVID-19 coronavirus outbreak as a pandemic on March 11, 2020 [1, at ¶ 4]. On

March 16, 2020, the United States Department of

Homeland Security issued a list of “essential occupations” that was designed to advise state and local governments creating responses to the pandemic [Id.]. On

March 24, 2020, the Governor of Mississippi issued Executive Order No. 1463, which likewise categorized certain businesses and industries as essential, after

reiterating that a state of emergency existed in Mississippi at that time due to COVID-19 [1-1]. On March 21,

2020, the Mayor and City Council of the City of Columbus, Mississippi, similarly issued a Resolution declaring a civil emergency and enacting a number of

emergency measures designed to counter the spread of

the disease [1-4]. Section 2 of this Resolution states as

follows:

Because of the likelihood of close person-toperson contact, which increases dramatically

the likelihood of the spread of infectious disease, effective at 5:00 p.m. on March 21, 2020,

and continuing until further action by the

Mayor and Council of the City of Columbus,

all bars, nightclubs, meetings of fraternal and

civic organizations, child care facilities, bowling alleys, recreational facilities, skating

rinks, tattoo parlors, gyms, barbershops,

hair/beauty and nail and tanning salons, spas,

convention centers, community centers, and

parks shall be closed for business. This section

also applies to municipally owned convention

spaces, community centers and parks and

App. 23

persons who have rented municipally owned

facilities shall be entitled to a full refund of

any rental sums and deposits paid.

[1-4, at 3] (emphasis added).

An accompanying Ordinance established that a violation of the Resolution “shall be punished by a fine

not exceeding $1,000 or imprisonment for a term not

exceeding 90 days, and the cost of prosecution, or by

both, such fine and imprisonment in the discretion of

the municipal judge” [1-5, at 1]. Furthermore, “[e]ach

day any violation of any provision of this Code or any

ordinance shall continue shall constitute a separate offense” [Id].

As the Plaintiff concedes, the Defendant allowed

the Plaintiff to reopen its business on May 9, 2020 [1,

at ¶ 16]. This equates to a mandatory closure of the

Plaintiff ’s business for seven weeks.

II.

Legal Standard

Summary judgment is warranted “if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine dispute as

to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp, v. Catrett, 477 U.S. 317, 322 (1986); Weaver

v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008),

This rule “mandates the entry of summary judgment,

after adequate time for discovery and upon motion,

against a party who fails to make a sufficient showing

to establish the existence of an element essential to

App. 24

that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

The party moving for summary judgment bears the

burden of identifying its basis for the motion, and must

point to specific parts of the record that support its contention of an absence of a genuine dispute of material

fact, Id. at 323.

After the moving party does so, the burden shifts

to the non-moving party, which must “go beyond the

pleadings and by . . . affidavits, or by the ‘depositions,

answers to interrogatories, and admissions on file,’

designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324; Littlefield v. Forney Indep. Sch, Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis

v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th

Cir, 1995). When there is a dispute about the facts, the

Court must view the facts in the light most favorable

to the non-moving party and likewise must draw reasonable inferences in that party’s favor. Scott v. Harris,

550 U.S. 372, 378 (2007). “However, a nonmovant may

not overcome the summary judgment standard with

conclusional allegations, unsupported assertions, or

presentation of only a scintilla of evidence,” McClure v.

Boles, 490 F.App’x 666, 667 (5th Cir. 2012) (per curiam)

(citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.

2007)).

Any claim that is not raised in a response to a defendant’s motion for summary judgment is deemed to

be waived. Aldrup v. Caldera, 274 F.3d 282, 288 (5th

Cir. 2001). Moreover, “[w]hen evidence exists in the

summary judgment record but the nonmovant fails

App. 25

even to refer to it in the response to the motion for summary judgment, that evidence is not properly before

the district court.” Malacara v. Garber, 353 F.3d 393,

405 (5th Cir. 2003) (citing Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “Rule 56 does

not impose upon the district court a duty to sift

through the record in search of evidence to support a

party’s opposition to summary judgment.” Ragas, 136

F.3d at 458. That said, summary judgment “must be

used cautiously or it may lead to drastic and lethal results.” Murrell v. Bennett, 615 F.2d 306, 309 (5th Cir.

1980).

III.

Analysis

As noted above, the Plaintiff presents several arguments and causes of action in its Complaint. Yet its

central allegation is that the Defendant’s Ordinance

represents an unlawful taking and seizure in violation

of the Fifth Amendment of the U.S. Constitution and

the similar clause in the Mississippi Constitution [1, at

¶¶ 18, 23]. Furthermore, the Plaintiff argues that the

“right to earn a living” is a “fundamental ‘property’ and

‘liberty right’ and because of this alleged fact, the Defendant’s Ordinance violates the Equal Protection

Clause of the Fourteenth Amendment of the U.S. Constitution [1, at ¶ 24]. It likewise invokes alleged violations of its procedural and substantive due process

rights [1, at ¶¶ 27-28]. However, in its Response to the

Defendant’s Motion for Summary Judgment, the

Plaintiff only presents two arguments [32, at 6-18].

The first argument claims that the Defendant violated

App. 26

the Equal Protection Clause by mandating the closure

of the Plaintiff ’s business due to COVID-19 while allowing churches, liquor stores, and large retailers to

remain open [32, at 6-13]. Its second argument claims

that the Defendant’s Ordinance is an unlawful taking

under the Fifth Amendment [32, at 13-18]. Since these

are the only two arguments presented in the Plaintiff ’s

Response, any other claim is deemed to be waived. Aldrttp, 274 F.3d at 288 (5th Cir. 2001). Thus, the Court

will only address these two arguments, which it takes

in turn.

A. The Defendant’s Ordinance Does

Not Violate the Equal Protection Clause

This Court has already addressed the substance of

the Plaintiff ’s argument in a separate case, Underwood v. City of Starkville, Mississippi. 2021 WL

1894900. In that case, the Court held that “it would be

impermissible judicial overreach and a violation of the

separation of powers if the Court were to second-guess

the modes used by the legislative and executive

branches ‘to protect the people at large’ so long as they

are not arbitrary or unreasonable.” Id., at *4 (quoting

Jacobson v. Commonwealth of Massachusetts, 197 U.S.

11, 27-28 (1905)). Furthermore, the Court noted that

“[e]ven in instances of competing theories regarding

public safety, it is the legislature’s prerogative and responsibility to decide on the appropriate course of action” and that “the judiciary has no place in

adjudicating or relitigating such decisions.” Id.

App. 27

The Court also rejected the contention that the

“right to work” is a fundamental right, as the Plaintiff

argues here. Id., at *5. Thus, rational basis review is

appropriate in this case as well, as it was in Underwood. Id. The Defendant has clearly met this burden

in its Brief in Support of Its Motion for Summary Judgment, in which it articulated sound reasons for considering both the Plaintiff ’s place of business specifically

and tanning salons in general to be places that would

cause the spread of the COVID-19 coronavirus, under

the circumstances at that time [27, at 5-6]. The Defendant also noted that other states restricted tanning salons as well [Id., at 6-7].

The Plaintiff alleges that the Defendant unlawfully distinguishes between tanning salons on the one

hand and liquor stores, retailers, and churches on the

other hand. However, the Defendant has adequately

stated rational reasons for restricting tanning salons,

while excluding other entities cited by the Plaintiff [27,

at 13-14; 33, at 6-7]. The businesses cited by the Plaintiff provide different services and are in different positions than that of the Plaintiff ’s business, and do not

present the same health and safety concerns as that of

the Plaintiff ’s tanning salon, while at the same time

providing goods and services that have been deemed

essential to public life in a way that “artificial tanning

services” are not. They are not simply not similarly situated, as required by law for the Plaintiff ’s argument

to be valid. See Gallegos-Hernandez v. United States,

688 F.3d 190, 195 (5th Cir. 2012). By that same token,

churches are protected under the First Amendment’s

App. 28

Exercise of Religion Clause, while the Plaintiff ’s tanning salon is not. The Court further notes that “while

the City may have implemented other methods in order to achieve its goals, it is not the place of the Court

to criticize the government’s modes and methodologies

for combating this deadly disease.” Underwood, at *5.

Thus, the Court finds that the Defendant has not violated the Plaintiff ’s Equal Protection rights.

B. The Defendant Has Not

Effectuated an Unlawful Taking

The Plaintiff argues that the Defendant’s Ordinance constitutes an unlawful taking under the Fifth

Amendment [32, at 13]. However, it conceded, and

rightly so, that this Court held in Underwood that a

Fifth Amendment claim did not apply under nearly

identical facts as those presented in the case sub judice

[Id.]. The Plaintiff thus asks that this Court reconsider

Underwood, and discard the reasoning presented there

[Id], The Court declines to do so. The Plaintiff argues

that the Defendant’s Ordinance is tantamount to a per

se taking under Fifth Amendment jurisprudence because it “completely foreclosed Golden Glow Tanning

Salon from earning income” [Id., at 14]. However, a per

se taking requires either “a permanent physical invasion [ ]or a complete deprivation of all economic benefit

of the property,” Underwood at *7. Neither is present

in this case, which therefore requires evaluation under

the Penn Central factors, as was explained at length

in Underwood. Id. The Court need not rehash

App. 29

Underwood’s legal analysis here, and instead cites to

the substance of its findings.

Returning to the case sub judice, the Ordinance

was a governmental regulation enacted in a time of necessity for a specific purpose. The Plaintiff has failed to

convince this Court how the first two factors of the

Penn Central analysis – "economic impact of the regulation on the claimant” and “the extent to which the

regulation has interfered with distinct investmentbacked expectations" – weigh its favor. Penn Central

Transportation Authority v, City of New York, 438 U.S.

104, 124 (1978). As the Defendant correctly notes, the

Plaintiff speculates about lost profits; there is no guarantee that the Plaintiff would have generated income

during a pandemic at a time in which any interpersonal contact was considered to be risky. Nor does it

articulate any kind of interference with distinct investment-backed expectations. In contrast, the Defendant

correctly notes that the third Penn Central factor –

"the character of the government action,” i.e. the Ordinance – supports its case [27, at 16]. The Ordinance

can accurately be characterized as a temporary measure designed to promote the common good and safeguard the public from a deadly disease. Such

government action is in line with prior actions found

to be constitutional under the Penn Central factors,

These factors dictate the same outcome in the case sub

judice as in Underwood.

App. 30

IV.

Conclusion

The Plaintiff correctly notes the practically identical nature of the facts in the case sub judice with those

of Underwood. The Court sees of no reason to diverge

from its holding in that case, Just as in Underwood,

this case lacks the strength and substance to proceed

on the merits of the Plaintiff ’s arguments. Moreover,

as in Underwood, if the Court were to find in favor of

the Plaintiff, “it would call into question every regulatory restriction as a possible constitutional violation,

and jeopardize our entire system of administrative action.” Underwood, at *9. The Court is once again unwilling to do so.

For the reasons stated above, the Defendant’s Motion for Summary Judgment [26] is GRANTED.

An order in accordance with this opinion will issue

on this day.

App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

GOLDEN GLOW

TANNING SALON, INC.

v.

CITY OF COLUMBUS,

MISSISSIPPI

PLAINTIFF

CAUSE NO.

1:20-CV-103-GHD-DAS

DEFENDANT

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

(Filed Nov. 9, 2021)

Pursuant to an opinion issued this day, it is hereby

ORDERED that:

(1) the Defendant’s Motion for Summary Judgment [26] is GRANTED,

(2) the Plaintiffs’ claims alleging violations of the

Fourth, Fifth, and Fourteen Amendments of

the United States Constitution, as well as

their claims under the Mississippi Constitution, [1] are DISMISSED WITH PREJUDICE,

and

(3) this case is CLOSED.

All memoranda, depositions, declarations, and

other materials considered by the Court in ruling on

this motion are hereby incorporated into and made a

part of the record in this action.

App. 32

SO ORDERED, this the 9th day of November,

2021.

/s/ Glen H. Davidson

SENIOR U.S. DISTRICT JUDGE