Top Developments in COVID-19 Litigation

August 16, 2021

Jason A. Levine, Ryan Martin-Patterson, and J. Stephen Tagert

OVERVIEW

This week’s top COVID-19 litigation developments include: multiple lawsuits against Texas and Florida over statewide bans on mask requirements; complaints filed against California and Los Angeles County over their respective residential eviction moratoriums; and the U.S. Supreme Court’s refusal to enjoin Indiana University’s vaccination mandate for returning students.

1. Texas Faces Suits Over Statewide Ban on Mask Requirements

Overview: On May 18, 2021, Governor Greg Abbott of Texas issued an Executive Order (“EO GA-36”) prohibiting governmental entities in Texas from requiring or mandating the wearing of face masks to prevent the spread of COVID-19, subject to some exceptions. The ban has faced several suits, including from municipalities, and has already been enjoined in Dallas and San Antonio.

The Order: EO GA-36 purports to ban all government entities in the state of Texas from requiring that any person wear a mask. It exempts supported living centers, government-owned-and-operated hospitals, jails, and prisons. Public schools were given until June 4 to end any then-current mask mandates. EO GA-36 also notes that violations are subject to a $1,000 fine. The Governor restated the substantive provisions of EO GA-36 as part of a larger executive order issued on July 29, 2021 (“EO GA-38”), which also banned “vaccine passports.”

The Injunctions: Both San Antonio and Dallas quickly sued to enjoin EO GA-38, alleging that it fell outside of Governor Abbott’s emergency powers under the Texas Disaster Act of 1975, and both moved for temporary restraining orders. Both were granted on August 10, 2021.  The District Court of Dallas County, Texas, held that the Texas Disaster Act, which Governor Abbott cited as the authority for EO GA-38, also granted Dallas County’s chief executive the “authority to issue orders to protect the safety and welfare of Dallas County citizens,” which includes issuing face covering and mask mandates. And the court concluded that the “[c]itizens of Dallas will suffer immediate, imminent, and irreparable harm for which there is no adequate remedy at law if a temporary restraining order does not issue.”  In support, the court cited the increase in Dallas County’s positive test rate from 5% to nearly 25% in July, the University of Texas Southwestern Medical Center’s prediction that COVID-19 infections were reaching or had reached exponential growth rates in the county, and evidence that COVID-19 hospitalizations had increased by over 101% over the previous two-week period. The District Court of Bexar County, Texas, issued a similar order based on its finding that San Antonio and the surrounding county would be “irreparably injured” from the mask-mandate prohibition.  The cities’ motions for preliminary injunctions are pending.

Our Take: Perhaps because of their temporary nature, neither of these TROs specifically addressed the Governor’s authority to issue the relevant Executive Orders or to preempt contrary state orders.  One would expect to see such analysis in any future preliminary injunctions that may be issued and appealed.  But with at least these early successes, we may see more local Texas jurisdictions seeking to enjoin the Governor’s ban on mask mandates.

2. Florida Also Faces Suits Challenging Statewide Ban on Mask Requirements

Overview: On August 6, 2021, two groups of parents and schoolchildren sued Governor Ron DeSantis of Florida to enjoin his Executive Order 21-175, which precludes individual county school districts from enacting mask mandates and threatens to withhold state funds from nonconforming districts.

The Complaints:  According to the complaints, the plaintiff children are more likely to contract, and then be hospitalized and subsequently die from, COVID-19 as a result of EO 21-175. In particular, children under 12 cannot be vaccinated, and the complaints contend that being around unvaccinated and unmasked children will make the plaintiff children more likely to contract COVID-19. The two sets of plaintiffs bring slightly different claims, but the primary claim in each complaint is brought under Florida’s constitutional provision for “a uniform, efficient, safe, secure, and high quality system of free public schools.”

Our Take: Governor DeSantis is in a position similar to Governor Abbott: having taken a hard stance against mask mandates in schools, he will now have to litigate that issue in multiple jurisdictions across his State.  It is too early to tell whether he will prevail in that effort.

3. State of California and Los Angeles County Sued Over Laws Related to Eviction Moratoriums

Overview: On August 5 and 6, 2021, landlords and rental associations filed lawsuits against the State of California and Los Angeles County as a result of laws, Executive Orders, resolutions, and ordinances placing a moratorium on residential evictions.

Complaints: The complaints allege that the state and county eviction moratoriums are based on the illusory promise that tenants will eventually pay accrued rent when, in fact, that is unlikely. In the meantime, landlords are prevented from seeking the only available remedy for their own financial distress—replacing a nonpaying tenant with a paying one. The complaints allege various claims, including violations of the U.S. Constitution’s Fifth Amendment Takings Clause and Contracts Clause.

Our Take: Landlords are feeling more financial pressure as the federal government and several states extend eviction moratoriums more than 17 months into the pandemic. We previously covered the U.S. Supreme Court’s decision related to the federal moratorium, but any future decisions by the Supreme Court on the specific question whether the CDC exceeded its authority would not limit states from imposing their own similar moratoriums. That said, other claims are percolating amongst the courts, and on August 12, 2021, the U.S. Supreme Court enjoined a portion of New York’s COVID Emergency Eviction and Foreclosure Prevention Act that would have allowed a tenant to self-certify financial hardship, generally precluded the landlord from contesting that certification, and denied the landlord a hearing, holding that the “scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.”  We will report further on whether the U.S. Supreme Court or other courts find provisions of state eviction moratoria unlawful, whether under the U.S. Constitution or otherwise.

4. U.S. Supreme Court Refuses to Enjoin Indiana University’s Vaccination Mandate

UPDATE: We previously covered several students’ challenge to Indiana University’s requirement that students returning to campus must receive COVID-19 vaccinations before returning to campus for the fall 2021 semester, subject to exemptions for medical reasons and for students with bona fide religious objections to vaccination. On August 12, U.S. Supreme Court Justice Amy Coney Barrett denied the students’ application for an emergency stay of the vaccination mandate, without comment or referral of the application to the full Court. 

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Ryan Martin-Patterson and J. Stephen Tagert are litigation associates at the firm.