1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 9:20-cv-80729-AHS

DEBRA HENRY, 

Plaintiff,

v. 

RON DESANTIS, IN HIS OFFICIAL 

CAPACITY AS GOVERNOR OF THE 

STATE OF FLORIDA, 

Defendant.

____________________________________/

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OPPOSITION 

TO EMERGENCY INJUNCTIVE RELIEF, AND INCORPORATED MEMORANDUM 

OF LAW

At issue in this case is the constitutionality of the Governor’s Executive Order 20-112 and 

“prior Orders regarding [the] same.” DE 1 pp. 1, 6.1 These Orders, issued in response to the Novel 

Coronavirus Disease 2019 (COVID-19) pandemic, mitigate the spread of the disease by limiting

operations of some businesses, occupancy of certain buildings, and movement of persons into, and 

within, the State. Because (1) Plaintiff lacks standing, (2) her state law claims are barred by the 

Eleventh Amendment, and (3) her Complaint fails to state any claim upon which relief can be 

granted, the Court should dismiss. Alternatively, because Plaintiff cannot demonstrate the need for 

emergency injunctive relief, the Court should reject her request for this extraordinary remedy.

1 This overview relies on publicly available government Orders, which are subject to 

judicial notice. See, e.g., Smith v. Sec’y of Veterans Affairs, No. 19-13189, 2020 WL 1655938, at 

*1 (11th Cir. Apr. 3, 2020) (“When ruling on a Rule 12(b)(6) motion to dismiss, the district court 

is permitted to take judicial notice of public records without needing to convert the motion into a 

motion for summary judgment[.]” (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276-78 

(11th Cir. 1999)).

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BACKGROUND

A. In late 2019, a novel infectious respiratory disease was detected in Wuhan, China. This 

virus, eventually named COVID-19, spread rapidly across the globe, leading the World Health 

Organization to declare a Public Health Emergency of International Concern and a global 

pandemic. When two Florida residents tested positive the first week of March 2020, Governor Ron 

DeSantis issued Executive Order 20-51, which directed the Florida Department of Health to 

declare a Public Health Emergency. See https://www.flgov.com/2020-executive-Orders/ (listing 

all of the Governor’s publicly available Executive Orders related to COVID-19). On March 9, 

Governor DeSantis declared a State of Emergency by issuing Executive Order 20-52. 

Since his March 9 state-of-emergency declaration, the Governor has signed several 

Executive Orders designed to minimize social congregation while encouraging creative business 

practices. In Executive Order 20-68, he suspended the sale of alcoholic beverages for on-premises 

consumption. In Executive Order 20-70, he prohibited food-service establishments in Broward and 

Palm Beach Counties from allowing on-premises consumption, but he permitted them to fulfill 

delivery orders. And in Executive Order 20-71, he extended the on-premises food consumption 

ban statewide but authorized “all vendors licensed to sell alcoholic beverages,” including 

restaurants, to sell alcoholic beverages in sealed containers for off-premises consumption (so long 

as the beverages accompanied a food order).

Subsequent Orders restricted the movement of persons. Executive Order 20-91, for 

example, directed all persons in Florida to limit their movements and personal interactions outside 

the home to those necessary for obtaining or providing essential services or conducting essential 

activities. Notably, the “essential service” exception included an allowance for those who worked 

at restaurants and other facilities that prepare and serve food.

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On April 29, 2020, the Governor signed Executive Order 20-112. The April 29 Order

triggered “Phase One” of Florida’s reopening by cautiously removing certain restrictions on the 

movement of persons and the operations of restaurants in all but Palm Beach, Miami-Dade, and 

Broward Counties. With the May 9 issuance of Executive Order 20-120, the Governor extended 

Florida’s Phase One reopening to Palm Beach County. Restaurants in that jurisdiction and in other 

Phase One jurisdictions may now operate at 25 percent occupancy. Importantly, these Orders left 

in place the authorization for food delivery and for licensees across Florida to sell alcoholic 

beverages for off-premises consumption.

B. Plaintiff, a bar-industry veteran, filed her Complaint on May 1, 2020. DE 1. Until March 

17, 2020, she worked at a bar (Pit Row) and a restaurant (Buffalo Wild Wings) in Palm Beach 

County. DE 1 at ¶¶ 2-3, 5. In her view, the Governor’s Executive Orders are unconstitutional 

because they closed her places of employment and caused her to lose her jobs. DE 1 at ¶ 16. 

Although she recites no fewer than seven provisions of the United States and Florida Constitutions, 

she states that her “cause of action is solely related to the lack of authority of [the Governor] to 

enter these [O]rders.” DE 1 at ¶ 24. She seeks an emergency injunction vacating Executive Order

20-112 and “prior Orders regarding [the] same.” DE 1 at pp. 1, 6.

LEGAL STANDARDS

Under Rule 12(b)(1), the Court must dismiss the Complaint if it does not establish “a basis 

of subject matter jurisdiction.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 

1980).2 Under Rule 12(b)(6), the Court must dismiss the Complaint unless well-pleaded facts or 

reasonable inferences from those well-pleaded facts provide grounds for relief. McGinley v. 

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit 

adopted all decisions of the Fifth Circuit decided before September 31, 1981.

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Houston, 361 F.3d 1328, 1330 (11th Cir. 2004). In assessing these questions, “[i]t is not . . . proper 

to assume that [the plaintiff] can prove facts that [he or she] has not alleged.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 563 n.8 (2007) (second alteration in original) (citation omitted).

A party seeking a preliminary injunction must show that: “(1) [she] has a substantial 

likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction 

issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction 

may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public 

interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). “Because a preliminary 

injunction is an extraordinary and drastic remedy, relief may not be granted unless the movant 

clearly established the burden of persuasion as to the four requisites.” Callahan v. DHS, 939 F.3d 

1251, 1257 (11th Cir. 2019) (citation and internal quotation marks omitted).

ARGUMENT

I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED.

A. Plaintiff lacks standing.

“The standing inquiry ‘is an essential and unchanging part of the case-or-controversy 

requirement of Article III.’” Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1177 (11th Cir. 2009) 

(quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)). To establish standing, a plaintiff

must show (1) injury-in-fact, meaning a concrete and particularized invasion of a legally protected 

interest; (2) a causal connection between that injury and the complained-of conduct; and 

(3) redressability, meaning a favorable decision will eliminate the injury. Lujan, 504 U.S. at 560-

61. The Supreme Court has held that if “a plaintiff’s asserted injury arises from the government’s 

allegedly unlawful regulation . . . of someone else,” a stronger showing is needed, making standing 

“substantially more difficult” to establish. Id. at 562 (citation omitted).

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According to Plaintiff, she lost her jobs as “a direct result of” the Governor’s Executive 

Orders, DE 1, at ¶ 2, and vacating the Executive Orders will remedy that harm. But the Governor’s 

Executive Orders were not the cause of her injury, nor would vacating them restore her 

employment. This is because Executive Order 20-112 and its predecessors did not command her 

employers to fire her. Nor did they foreclose other means for her employers to continue operation, 

such as sale for off-premises consumption. 

The Executive Orders prohibited certain establishments, like bars and restaurants, from 

engaging in one form of commerce: the sale of alcohol and food for on-premises consumption. 

Bars and restaurants were always able to operate in some form; indeed, the Governor encouraged 

“creative business practices that safely serve consumers during this temporary period of 

distancing.” Executive Order 20-71. He specifically authorized take-out food options3and to-go 

alcohol sales (which were previously unlawful) to facilitate continued operation and profitability 

of bars and restaurants, id. at Section 1(B). That Plaintiff’s employers did not take advantage of 

these options or choose to retain her is, regrettably, beyond the Governor’s control. 

Even assuming Plaintiff had correctly characterized the Executive Orders, her arguments 

regarding causation and redressability would fail. The key provisions of the Executive Orders 

Plaintiff cites for the source of her injury governed the activities of her employer—not Plaintiff 

herself.

4 Per Lujan, when a plaintiff is not the object of the challenged government action, standing 

requires a heightened showing. See 504 U.S. at 562. “In that circumstance,” both the traceability 

3 Even Executive Order 20-70, now expired, expressly provided that it did “not apply to 

delivery services, pick-up or take out services provided by” bars in Palm Beach and Broward 

Counties.

4 Although Executive Order 20-91 and Executive Order 20-112 placed restrictions on the 

movement of individuals, these Orders came long after Plaintiff’s termination occurred on March 

17. Moreover, both Orders authorize individuals to travel to places of employment that prepare or 

serve food. Executive Order 20-91.

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and redressability inquiries “hinge on the response of the regulated (or regulable) third party to the 

government action or inaction—and perhaps on the response of others as well.” Id. Because these

“essential elements of standing ‘depend[] on the unfettered choices made by independent actors 

not before the courts and whose exercise of broad and legitimate discretion the courts cannot 

presume either to control or to predict,’ . . . it becomes the burden of the plaintiff to adduce facts 

showing that those choices have been or will be made in such manner as to produce causation and 

permit redressability of injury.’” Id. (citations omitted)

Plaintiff has failed to satisfy this heightened burden as to either causation or redressability. 

Regarding causation, “Lujan explained that an injury is not fairly traceable to the actions of a 

defendant if caused by the ‘independent action of some third party not before the court.’” Swann

v. Sec’y, Georgia, 668 F.3d 1285, 1288 (11th Cir. 2012) (quoting Lujan, 504 U.S. at 560). When

Plaintiff’s employers, two third-party businesses, ended her employment on March 17, they did so 

not at the behest of the Governor but despite the Governor’s best efforts to balance a response to 

the COVID-19 pandemic with measures designed to protect all employees, like Plaintiff, in the 

food-service workforce. For that reason, the injury she alleges she suffered (termination) is not 

fairly traceable to the Governor.

Plaintiff’s claim of redressability fares even worse. “Redressability is established . . . when 

a favorable decision ‘would amount to a significant increase in the likelihood that the plaintiff 

would obtain relief that directly redresses the injury suffered.’” Harrell v. The Fla. Bar, 608 F.3d 

1241, 1260 n.7 (11th Cir. 2010) (citation omitted). To demonstrate this prong, a plaintiff must 

show that it is “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a 

favorable decision.” Lujan, 504 U.S. at 561 (citation omitted). The redressability inquiry thus 

requires the Court to examine whether it is “the effect of the court’s judgment on the defendant—

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not an absent third party—that redresses the plaintiff’s injury, whether directly or indirectly.” 

Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (internal citations omitted). 

Plaintiff’s sole grievance lies with her job loss, and an Order vacating the Governor’s 

Executive Orders would not force her employers, both absent third parties, to rehire her. See

Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1997) (stating that nonparties are not 

bound by a court’s judgment). Nor would vacatur “indirectly” remedy her purported injury. 

Restaurants in Palm Beach County may now serve food and drinks at limited occupancy. Even if 

Plaintiff’s employers were permitted to offer on-premises consumption without any limitation, 

they would not be forced to do so. As the Plaintiff herself avers, “[b]usinesses are free to remain 

closed,” notwithstanding the state’s move to Phase One reopening. DE 1 at ¶ 22. And she admits 

that “citizens are free to stay home and not patronize any business” at all, so it remains entirely a 

matter of conjecture that her former employers’ respective needs would rise to the level of 

requiring pre-pandemic staffing. DE 1 at ¶ 22. Finally, Plaintiff has not established that, even 

assuming best-case speculation for Florida’s reopening, her employers would likely rehire her. 

B. The Eleventh Amendment bars Plaintiff’s state constitutional claims.

“The Eleventh Amendment to the Constitution bars federal courts from entertaining suits

against states.” Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1302 (11th Cir. 

2005). Although Ex parte Young provides an “exception to this rule for suits against state 

officers . . . to end continuing violations of federal law,” Fla. Ass’n of Rehab. Facilities, Inc. v.

State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir. 2000) (emphasis 

added), the Supreme Court has disallowed causes of action contending that “a state official has 

violated state law,” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). The 

Pennhurst exception exists because “[a] federal court’s grant of relief against state officials on the 

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basis of state law . . . conflicts directly with the principles of federalism that underlie the Eleventh 

Amendment.” 465 U.S. at 106. 

Some of Plaintiff’s claims allege that the Governor’s Executive Orders violate various 

provisions of the Florida Constitution, specifically, Article I, Sections 1, 2, and 5, and Article IV, 

Section 1. In other words, Plaintiff’s suit requests that “a federal court instruct[]” a “state official[] 

on how to conform [his] conduct to state law,” which is a request the Supreme Court characterized 

as a “great[] intrusion on state sovereignty.” Pennhurst, 465 U.S. at 106. For this reason, such 

requests may not be adjudicated by federal courts. See id. at 121 (“[A] claim that state officials 

violated state law in carrying out their official responsibilities is a claim against the State that is 

protected by the Eleventh Amendment.”). Because Pennhurst dictates that these claims must be 

dismissed as running afoul of the Eleventh Amendment, the Court should do so here.

5

C. Plaintiff has failed to state any claim.

Should the Court decline to dismiss the Complaint for lack of jurisdiction, Plaintiff’s 

Complaint is nonetheless subject to dismissal in its entirety under Rule 12(b)(6). Plaintiff asserts

that the Governor’s Orders are unconstitutional both on their face and as applied.6 DE 1 at ¶ 6. Her 

5 McDonough v. Fernandez-Rundle, 862 F.3d 1314 (11th Cir. 2017), is not to the contrary. 

In McDonough, the plaintiff sought injunctive relief barring the State Attorney from prosecuting 

him for violating a provision of the Florida Security of Communications Act. Id. at 1316. He 

brought suit under Section 1983 alleging that the statute did not apply to him and that if it did, it 

violated the First Amendment. Id. at 1318. On appeal, a divided Eleventh Circuit panel declined 

to reach the First Amendment issue on grounds of constitutional avoidance. Id. at 1321 n.3. The 

panel instead held that the plaintiff had not violated the statute and, as such, that the government’s 

threatened prosecution had no basis in state law. Id. at 1316. Significantly, however, the panel 

remanded to the district court “for further proceedings, if necessary, consistent with this opinion” 

without addressing the scope of any remedy. Id. at 1321. Thus, the panel was silent as to whether 

a district court could even issue an injunction against a state official based on a federal court’s

interpretation of state law—a route foreclosed by Pennhurst.

6 To the extent Plaintiff alleges that the Governor’s Orders are facially unconstitutional, 

her Complaint fails to plausibly satisfy the no-set-of-circumstances test applied by federal and 

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“cause of action is solely related to the lack of authority of [the Governor] to enter these [O]rders.” 

DE 1 at ¶ 24. She argues that authority is lacking both because the Governor has no power to enact 

such measures and because enaction, even if authorized, was arbitrary and unlawful. She is 

mistaken.

A. The Governor plainly has the authority to take the actions set forth in Executive Order

20-112 and its predecessors. Plaintiff suggests that the Governor cannot perform this function

because the emergency power he exercised was not conferred by the United States Constitution. 

See DE 1, at ¶ 7. But the Constitution confers powers only to the three branches of the federal

government; it does not confer power to the states. Indeed, the Tenth Amendment makes clear that 

“powers not delegated to the United States by the Constitution, nor prohibited by it to the states, 

are reserved to the states respectively, or to the people.” U.S. Const. amend. X (emphasis added). 

And courts have long recognized that the states have inherent police power to protect public health 

and welfare. See, e.g., Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 (1905).

Courts also recognize that states have discretion to prescribe the mode or manner in which 

those public health and welfare goals are accomplished. See id. Florida’s Constitution lays the 

foundation for the state’s emergency-powers scheme. Article IV, Section 1(a) of the state

Constitution provides that “[t]he supreme executive power shall be vested in [the] governor” and 

that “[t]he governor shall take care that the laws be faithfully executed.” Art. IV, § 1(a), Fla. Const. 

The same provision gives the Governor power to serve as commander-in-chief over the military 

forces of Florida, reinforcing his role as the leader and protector of the state. Art. IV, § 1(a), Fla. 

Const. These provisions of the State’s charter set the stage for the robust statutory scheme 

state courts. See, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987); Abdool v. Bondi, 141 

So. 3d 529, 538 (Fla. 2014).

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delineating the specific emergency powers vested in the state’s chief executive. Cf. Lighthouse 

Fellowship Church v. Northam, No. 2:20-CV-204, 2020 WL 2110416, at *11 (E.D. Va. May 1, 

2020) (noting that the state’s “Take Care” clause, in combination with state emergency power 

statutes, gave the Governor authority to declare a state of emergency and to implement mitigation 

measures in response to a public health threat by a communicable disease); Friends of DeVito v. 

Wolf, No. 68 MM 2020, 2020 WL 1847100, at *8-9 (Pa. Apr. 13, 2020), cert. denied, 590 U.S. --

- (May 6, 2020) (same).

The Governor’s constitutional prerogative, as chief executive of the State, is further 

delineated in Section 252.36, Florida Statutes. Section 252.36 states the Governor “is responsible 

for meeting the dangers presented to this state and its people by emergencies,” like the current 

global pandemic. § 252.36(1)(a), Fla. Stat. And subsection (1)(b) states that the Governor has 

discretion to decide how best to respond, noting that he “may issue executive orders, 

proclamations, and rules” that “have the force and effect of law.”

Subsection (5) adds to this framework, providing a list of powers that the chief executive 

may exercise in response to the emergency. § 252.36(5), Fla. Stat. Three of these provisions are 

relevant here. First, subsection 5(a) states that the Governor may “[s]uspend the provisions of any 

regulatory statute . . . if strict compliance with the provisions of any such statute, order, or rule 

would in any way prevent, hinder, or delay necessary action in coping with the emergency.”

Second, subsection 5(h) gives him power to “[s]uspend or limit the sale, dispensing, or 

transportation of alcoholic beverages” during times of emergency. Finally, subsection 5(g) 

empowers the Governor to control “the movement of persons within the [emergency] area, and the 

occupancy of premises therein.” 

In responding to the COVID-19 emergency, the Governor used each of these powers. He

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suspended certain statutes, curtailed alcohol sales, and limited occupancy of establishments 

identified as “potential gathering places for the spread of COVID-19.” See, e.g., Executive Order

20-70. Working within the acts enumerated in Section 252.36(5), he selectively invoked the 

measures which were best suited to meet the emergency and prevent further spread.

Moreover, the Governor’s Orders provided direction to the Department of Business and 

Professional Regulation, an executive agency created by the Florida Legislature specifically to 

regulate certain businesses, including restaurants and establishments that serve alcoholic 

beverages. § 20.165, Fla. Stat. The Legislature tasked this executive agency with “supervising the 

conduct, management, and operation” of alcohol sales, § 561.02, Fla. Stat., and taking measures 

to “safeguard[] the public health, safety, and welfare” for restaurants. § 20.165, Fla. Stat. In 

crafting his Orders and tasking this Department with their enforcement, the Governor exercised 

his constitutional prerogative to directly supervise the executive agency in performance of its 

critical mission. See Art. IV, § 6, Fla. Const. 

B. With the foundational authority question addressed, the only remaining merits issue is 

whether the restrictions in the Governor’s Executive Orders offend the state or federal 

Constitution. They do not. And Plaintiff falls far short of raising a cognizable claim to that effect.

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement exists to 

“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” 

Twombly, 550 U.S. at 555 (citation omitted). Under this standard, the Court “need only accept 

‘well-pleaded facts’ and ‘reasonable inferences drawn from those facts.’” Gonzalez v. Reno, 325 

F.3d 1228, 1235 (11th Cir. 2003) (emphases added) (quoting Oladeinde v. City of Birmingham, 

963 F.2d 1481, 1485 (11th Cir. 1992)). “[C]onclusory” statements and “[t]hreadbare” allegations 

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do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Seven of the twenty-six paragraphs in Plaintiff’s Complaint (more than 25 percent of her 

pleading) simply recite various provisions in United States and Florida Constitutions. See DE 1 at

¶¶ 8-10, 12-15. Plaintiff makes no attempt to explain how or why the Governor’s Executive Orders 

violate the First Amendment—which prohibits Congress from limiting freedom of, inter alia, 

speech and assembly7—or the Ninth Amendment of the United States Constitution. DE 1 at ¶¶ 8-

9. See Spano v. Satz, No. 09-60255-CIV, 2011 WL 1303147, at *7 (S.D. Fla. Mar. 31, 2011)

(explaining that the Ninth Amendment “cannot serve as the basis for a § 1983 claim because such 

a claim must be premised on the violation of a right guaranteed by the U.S. Constitution or federal 

law” (citation omitted)). Nor does she make an attempt to explain how or why they violate Article 

I, Section 2 of the Florida Constitution (which she quotes as stating that “[n]o person shall be 

deprived of any right because of race, religion, national origin, or physical disability,” DE 1 at

¶ 13). Simply put, Plaintiff does not adequately explain her claims to allow the Governor fully to 

respond. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1323 (11th Cir. 2015). 

As is true with shotgun pleadings in general, these pleading deficiencies “waste scarce 

judicial resources, inexorably broaden[] the scope of discovery, wreak havoc on appellate court 

dockets, and undermine[] the public’s respect for the courts.” Vibe Micro, Inc. v. Shabanets, 878 

F.3d 1291, 1295 (11th Cir. 2018) (alteration in original) (citation and internal quotation marks 

omitted). For that reason, the Court can (and should) dismiss Plaintiff’s Complaint for failure to 

satisfy the minimum pleading requirements in Rule 8.

7 To the extent she alleges a violation of the First Amendment under an unexplained 

incorporation theory, this claim lacks merit. See City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) 

(finding that the Constitution does not “recognize[] a generalized right of ‘social association’ that 

includes chance encounters in dance halls”).

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C. The closest Plaintiff comes to tying any of the cited constitutional provisions to the 

factual allegations in her Complaint is this threadbare statement:

[The Governor] has created an arbitrary Order that is 

unconstitutional on its face and as applied. [The Governor’s] Order 

is a clear violation of [Plaintiff’s] constitutional rights. The Order 

arbitrarily allows some business to open and others to remain closed. 

In addition, but not limited to, arbitrary county lines in which [sic] 

would disparately affect some businesses and not others of the same 

business type. 

DE 1 at ¶ 6. And this one: “[The Governor] has violated [Plaintiff’s] Fourteenth Amendment right 

to due process of law.” DE 1 at ¶ 19. Even these statements “epitomize[] speculation and therefore 

do[] not amount to a short and plain statement of [her] claim[s] under Rule 8(a).” Davis v. CocaCola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008), abrogated on other grounds by

Twombly, 550 U.S. 544.

Construed in the light most favorable to her, this portion of Plaintiff’s Complaint appears 

most clearly to allege that the Governor’s Orders infringe on her federal Fourteenth Amendment 

liberty, due process, and equal protection interests. In considering whether the Orders, all of which 

were issued in response to a global emergency, impermissibly invade these (or any other)

constitutional rights of Plaintiff, the Supreme Court’s Jacobson opinion provides the governing 

standard.

In Jacobson, the Supreme Court lent its imprimatur to the principle that state governments 

must perform “emergency exercises of state authority during a public health crisis.” In re Abbott, 

954 F.3d 772, 783 (5th Cir. 2020). The Court recognized that “under the pressure of great dangers,” 

a state may limit certain liberties otherwise enjoyed to the extent that “the safety of the general 

public” demands it. Id. at 778 (quoting Jacobson, 197 U.S. at 29); see also id. at 786 (“Jacobson

instructs that all constitutional rights may be reasonably restricted to combat a public health 

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emergency.”). This is so because “the liberty secured by the Constitution of the United 

States . . . 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.” Jacobson, 197 U.S. at 26.

Jacobson thus established a two-part test for determining whether an emergency measure

(here, the Governor’s Executive Orders) comports with the Constitution: (1) Does the restriction 

have at least some “real or substantial relation” to the crisis? and (2) Is the restriction “beyond all 

question, a plain, palpable invasion of rights secured by the fundamental law[?]” Id. at 31. In 

assessing the actions, the Court must determine whether the Governor has acted in an “arbitrary, 

unreasonable manner,” id. at 28, or through “arbitrary and oppressive” regulations, id. at 38. But 

Jacobson emphasizes that it is not the role of the courts to “second-guess the wisdom or efficacy 

of the measures.” In re Abbott, 954 F.3d at 785 (citing Jacobson, 197 U.S. at 28, 30).

8

Plaintiff’s constitutional claims fail Jacobson’s test. First, the Governor’s Executive Orders 

have a “real [and] substantial relation” to the unprecedented public health crisis that Florida faces. 

With his Orders limiting occupancy and suspending sales of alcohol for on-premises consumption, 

the Governor aimed to stop crowding at “venues where groups of people congregate,” Executive 

Order 20-71, a prudent action in response to “a severe acute respiratory illness that can spread 

among humans through respiratory transmission,” Executive Order 20-68. See also Hartman v.

8

See also Jacobson, 197 U.S. at 28 (“[T]he court would usurp the functions of another 

branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of 

the state, to protect the people at large was arbitrary, and not justified by the necessities of the 

case.”); Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) (explaining that the scope of review in 

cases challenging constitutionality of emergency power is limited to determination whether the 

executive’s actions were taken in good faith and whether there is some factual basis for the decision 

that the restrictions imposed were necessary), abrogated on other grounds by Steel Co. v. Citizens 

for a Better Environment, 523 U.S. 83 (1998).

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Acton, No. 2:20-CV-1952, 2020 WL 1932896, at *6 (S.D. Ohio Apr. 21, 2020) (“COVID-19 is a 

highly infectious disease that spreads easily amongst individuals. Social distancing measures have 

been implemented across the United States to curb the spread of the disease.”). As the prefatory 

clauses of the Orders explain, the measures mirrored guidance from the White House advocating 

“far-reaching social distancing measures, such as avoiding gatherings of more than 10 people.” 

Executive Order 20-71; Executive Order 20-68. And to the extent the Orders treated individuals 

in Broward, Miami-Dade, and Palm Beach Counties differently, they did so because the disease 

posed a heightened risk to these areas and because the Administration coordinated with local 

leadership who requested such assistance. See Executive Order 20-70.

Second, the restrictions are not “beyond all question, a plain, palpable invasion of rights 

secured by the fundamental law.” Jacobson, 197 U.S. at 31. As the Sixth Circuit recently 

reaffirmed in a COVID-19-related case examining movement restrictions, “no one . . . has a right 

‘to expose the community . . . to communicable disease.’” Maryville Baptist Church, Inc. v.

Beshear, No. 20-5427, 2020 WL 2111316, at *4 (6th Cir. May 2, 2020) (quoting Prince v.

Massachusetts, 321 U.S. 158, 166-67 (1944)). Plaintiff has put forth nothing to suggest any lack 

of good faith, see Avino, 91 F.3d at 109, nor has she offered facts demonstrating that the Orders 

were “arbitrary” or “unreasonable,” see Jacobson, 197 U.S. at 28, 38.

9

Indeed, her averments that 

“[b]usinesses are free to remain closed” and “citizens are free to stay home” suggest she recognizes 

9 This situation presents a far cry from the Eleventh Circuit’s recent decision in Robinson 

v. Attorney General, No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020). There, the 

Eleventh Circuit refused Alabama’s request for a stay of injunctive relief after concluding that the 

state failed to prove the district court abused its discretion when it held that Alabama’s Order 

delaying all abortions unjustifiably impinged a fundamental right in a “plain, palpable” fashion. 

Id. at *6. In Robinson, the Court upheld the injunction because the plaintiff set forth evidence 

suggesting that the restriction had “no real or substantial relation” to the state’s goal of protecting 

public health. Id. The state offered no contrary evidence, and, in its appeal, the state did not 

challenge the court’s factual findings. Id.

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the connection between pre-pandemic business operation, group gatherings, and spread of the 

disease. DE 1 at ¶ 22. 

D. To the extent Plaintiff suggests that she was entitled to procedural Due Process before

issuance of the Governor’s orders, this contention fails as a matter of law. The Governor’s Orders 

constitute emergency actions for the protection of the health and welfare of the people of the State.

See DE 1 at ¶ 19. The orders, all of which “have the force and effect of law,” § 252.36(1)(b), Fla. 

Stat., applied generally to thousands of individuals and businesses around the state; they were not 

targeted to Plaintiff or her employers, nor do they conceivably constitute “adjudication.” For these 

reasons, she has already received all the process to which she is entitled. See Hartman, 2020 WL 

1932896, at *8 (“The State’s Order directing non-essential businesses to cease operating their 

physical locations did not violate Plaintiffs’ due process rights because the Director’s Order was a 

generally applicable Order affecting thousands of businesses, and not a decision targeting an 

individual or single business.”); cf. 75 Acres, LLC v. Miami-Dade Cty., 338 F.3d 1288, 1296-98 

(11th Cir. 2003) (concluding that a generally applicable government action does not implicate 

procedural due process); L C & S, Inc. v. Warren Cty. Area Plan Comm’n, 244 F.3d 601, 602 (7th 

Cir. 2001) (same). Holding otherwise would place an unadministrable burden on the state during 

this time of emergency. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445

(1915) (“There must be a limit to individual argument in such matters if government is to go on.”).

Finally, to the extent Plaintiff argues that the Orders raise an equal protection problem, this 

claim, too, fails. The Governor’s decision to treat Miami-Dade, Broward, and Palm Beach 

Counties differently than other counties was not arbitrary. Instead, his choice bore a “reasonable 

and just relation” to the goal of protecting the State and its people. See McLaughlin v. Florida, 379 

U.S. 184, 190 (1964). As Executive Order 20-70 explained in its prefatory clauses, the Governor 

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acted in response to local authorities from Palm Beach and Broward who “requested application 

of the CDC recommendations.” Executive Order 20-70. When the potential for spread became a 

statewide concern, the Governor imposed similar limits on all other counties in Florida. Executive 

Order 20-91. 

The reasonableness of the Governor’s action is further underscored by his response to the 

changing pandemic landscape. Palm Beach County’s numbers have improved.10 In recent weeks, 

data from the County revealed a downward trajectory of influenza-like illness and COVID-like 

illness, as well as a low percent of new individuals testing positive. That data, in addition to a 

request from Palm Beach County leadership, led the Governor to apply Phase One to the County.

Executive Order 20-120. Palm Beach County is now in the same Phase One position, with the 

same individual and commercial permissions, as the parts of the State least restricted by the 

Governor’s Orders.

II. INJUNCTIVE RELIEF, EMERGENCY OR OTHERWISE, SHOULD BE DENIED.

In her prayer for relief, Plaintiff argues that emergency injunctive relief is necessary to 

remedy the harms caused by the Governor’s Orders. “The purpose of a preliminary injunction is 

merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. 

of Texas v. Camenisch, 451 U.S. 390, 395 (1981). But Plaintiff has failed to establish several 

elements necessary to support preliminary injunctive relief. The request for extraordinary relief 

should therefore be denied.

A. Plaintiff cannot establish a substantial likelihood of success.

Plaintiff cannot establish a substantial likelihood of success for the same reasons that her 

Complaint should be dismissed. First, as explained previously, Plaintiff lacks standing to bring

10 Daily county reports are available at https://floridahealthcovid19.gov/.

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suit. The Orders did not actually cause her any injury because they did not fully close her former 

places of employment or mandate her termination. And vacatur would not provide her with the 

redress she seeks—i.e., reemployment. 

Second, Plaintiff’s state law claims are barred by the Eleventh Amendment. See Pennhurst, 

465 U.S. at 106. 

And third, the Governor’s Executive Orders are plainly constitutional. The measures 

Ordered by the Governor bear a “real and substantial connection” to the goal of meeting the public 

health emergency, and they were enacted in good faith. They therefore do not violate her 

constitutional rights. See Jacobson, 197 U.S. at 31. Any temporary burden on her constitutional 

rights qualifies as a reasonable restriction to combat a public health emergency. In re Abbott, 954 

F.3d at 778 (quoting Jacobson, 197 U.S. at 29); see id. at 786 (“Jacobson instructs that all

constitutional rights may be reasonably restricted to combat a public health emergency.”).

B. Plaintiff cannot establish irreparable injury.

Plaintiff cannot establish that irreparable injury will occur absent the Court’s entry of an 

injunction. In her view, “[l]ost revenue combined with debt that mounts daily is, without a doubt, 

causing irreparable harm.” DE 1 at ¶ 20.B. She is mistaken on the proper legal standard.

The Eleventh Circuit has adhered to the view that “[m]ere injuries, however substantial, in 

terms o[f] money, time and energy necessarily expended in the absence of a stay, are not enough” 

to constitute an irreparable injury. Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1112 n.20 

(11th Cir. 2004) (quoting Sampson v. Murray, 415 U.S. 61, 90 (1974)). This is particularly true of 

the income Plaintiff claims she lost before filing her lawsuit; “[t]he purpose of a preliminary 

injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will 

surely result without their issuance.” Schrier v. Univ. Of Co., 427 F.3d 1253, 1267 (10th Cir. 2005). 

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Setting aside that vacatur of the Executive Orders will not result in her reemployment, see supra 

at I.A., her purported monetary injury—assuming she could prove her case—could be redressed 

in the normal course.

C. The alleged injury to Plaintiff is far outweighed by the public interest in 

keeping the Governor’s Executive Orders intact.

The public interest decisively weighs in favor of allowing the Executive Orders to remain 

in effect. Executive Order EO 20-112 went into effect on May 4, 2020—merely one week ago. 

The Governor’s Executive Order covers the entirety of Florida’s Phase One reopening. Granting 

a preliminary injunction at this early stage of the proceedings would, in effect, immediately reopen 

the State—contrary to the Governor’s best judgment and the advice of the White House, the 

Centers for Disease Control and Prevention, the Florida Surgeon General and State Health Officer, 

the Florida Department of Health, and the Task Force to Re-Open Florida. See Executive order 

20-120; Executive Order 20-112. A preliminary injunction would undoubtedly throw the State into 

chaos and confusion and unnecessarily place the health and safety of Florida’s most vulnerable 

citizens at risk. Florida’s need to respond to the unprecedented public health emergency caused by 

COVID-19 significantly outweighs any harm caused by the continued enforcement of the 

Governor’s Orders. This Court should maintain the status quo and deny the request for an 

injunction.

CONCLUSION

For the foregoing reasons, the Court should dismiss Plaintiff’s challenge to the Governor’s 

Executive Order 20-112 and its predecessors for lack of subject matter jurisdiction, or, in the 

alternative, for failure to state a claim upon which relief can be granted. Emergency injunctive 

relief is improper because Plaintiff has failed to demonstrate a likelihood of success on the merits, 

her harm is not irreparable, and the public interest would not be served by such equitable action.

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Respectfully submitted this 11th of May, 2020.

RON DESANTIS

GOVERNOR

/s/ Colleen M. Ernst

Colleen M. Ernst (FBN 112903)

DEPUTY GENERAL COUNSEL

Joseph W. Jacquot (FBN 189715)

GENERAL COUNSEL

Joshua E. Pratt (FBN 119347)

ASSISTANT GENERAL COUNSEL

Executive Office of the Governor

The Capitol, PL-05

Tallahassee, Florida 32399-0001

Phone: (850) 717-9310

Joe.Jacquot@eog.myflorida.com

Colleen.Ernst@eog.myflorida.com

Joshua.Pratt@eog.myflorida.com

Counsel for Governor DeSantis

Edward M. Wenger (FBN 85568)

Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 32301

Phone: (850) 222-7500

Fax: (850) 224-8551

edw@hgslaw.com

Counsel for Governor DeSantis

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed with the Court’s 

CM/ECF system, which provides notice to all parties, on this 11th day of May, 2020.

/s/ Colleen M. Ernst

Colleen M. Ernst

DEPUTY GENERAL COUNSEL

Case 9:20-cv-80729-AHS Document 9 Entered on FLSD Docket 05/11/2020 Page 21 of 21