IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

John McDonald,

Plaintiff,

v.

Governor JB Pritzker and Grace B. Hou,

Defendants.

No. 20 C 3653

Hon. Rebecca R. Pallmeyer

STATE DEFENDANTS’ MEMORANDUM IN OPPOSITION TO 

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

KWAME RAOUL

Attorney General of Illinois

Amanda L. Kozar

Mary A. Johnston

Sarah Newman

Mike Dierkes

Office of the Illinois Attorney General

100 West Randolph Street

Chicago, Illinois 60601

June 29, 2020

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 3

The COVID-19 Pandemic Spreads Throughout the World................................................ 3

The Governor Takes Action to Protect the State. ............................................................... 4

IDHS’s Community Day Services Program ....................................................................... 8

COVID-19 and Individuals with Intellectual or Developmental Disabilities................... 11

IDHS’s Plan to Reopen the CDS Program ....................................................................... 13

LEGAL STANDARD................................................................................................................... 15

ARGUMENT................................................................................................................................ 16

I. Plaintiff Is Unlikely to Succeed on the Merits of His Claims............................... 18

A. Plaintiff does not have standing to request the far-reaching relief he 

seeks.......................................................................................................... 18

B. Granting the relief Plaintiff seeks would require a violation of the 

principles of federalism............................................................................. 19

C. IDHS’s decisions regarding when to restart the CDS program are 

entitled to deference under Jacobson........................................................ 22

D. Plaintiff is not likely to succeed on the merits of his claims. ................... 26

II. Plaintiff Has Not Shown That He Will Be Subjected to Irreparable Harm 

Absent Judicial Intervention. ................................................................................ 38

III. The Balance of Interests Weighs Heavily in Favor of the State. .......................... 39

CONCLUSION............................................................................................................................. 42

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TABLE OF CASES

A.H. by Holzmueller v. Illinois High Sch. Ass’n, 

263 F. Supp. 3d 705 (N. D. Ill.) (Jul. 7, 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31-34

Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 

134 F.3d 821(7th Cir. 1998) ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-6, 18, 39

BRK Brands, Inc. v. Nest Labs, Inc., 

28 F. Supp. 3d 765 (N.D. Ill. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Cassell v. Snyders, 

No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) . . . . . . . . . . . . . . 1, 4, 22, 24

City of Chicago v. Shalala, 

189 F.3d 598 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

City of Cleburne, Tex. V. Cleburne Living Ctr., 

473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-7

Conrad v. Boiron, Inc., 

869 F.3d 536 (7th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Chicago United Indus. v. City of Chicago, 

445 F.3d 940 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Elim Romanian Pentecostal Church v. Pritzker, 

No. 20-1811, 2020 WL 3249062 (7th Cir. June 16, 2020) . . . . . . . . . . . . . . . . . . .3, 4, 40

Elim Romanian Pentecostal Church v. Pritzker, 

No. 20 C 2782, 2020 WL 2468194 (N.D. Ill. May 13, 2020) . . . . . . . . . . . . . . . . . . . . 3-4

FCC v. Beach Commc’ns, Inc., 

508 U.S. 307 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Graham v. Med. Mut. of Ohio, 

130 F.2d 293 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Grand River Enterprises Six Nations, Ltd. v. Pryor, 

425 F.3d 158 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Jacobson v. Commonwealth of Massachusetts, 

197 U.S. 11 (1905) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-4

Lawson Prods., Inc. v. Avnet, Inc., 

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iv

782 F.2d 1429 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Mazurek v. Armstrong, 

520 U.S. 968 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mich. v. U.S. Army Corps of Eng’g, 

667 F.3d 765 (7th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Milner v. Apfel, 

148 F.3d 812 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Minerva Dairy, Inc. v. Harsdorf, 

905 F.3d 1047 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-7

Missouri v. Jenkins, 

495 U.S. 33 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Monarch Beverage Co., Inc. v. Cook, 

861 F.3d 678 (7th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Money v. Pritzker,

Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), 19-20, 26, 

28-30, 39

Novak v. Hall, 

139 F. Supp. 3d 901 (N.D. Ill. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Oconomowoc Residential Programs v. City of Milwaukee, 

300 F. 3d. 775 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Orr v. Shicker, 

953 F.3d 490 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Human Servs., 

337 F. Supp. 3d 308 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc., 

149 F.3d 722 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Ploss as Trustee for Harry Ploss Trust DTD 8/16/1993 v. Kraft Foods Group, Inc., 

431 F.Supp.3d 1003 (N.D. Ill. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pursuing America’s Greatness v. FEC, 

831 F.3d 500 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Radaszewski ex rel. Radaszewski v. Maram, 

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383 F.3d 599 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Roland Mach. Co. v. Dresser Indus., Inc., 

749 F.2d 380 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 38

Rowe v. Finnan, 

No. 11-CV-524, 2013 WL 74609 (S.D. Ind. Jan. 4, 2013) . . . . . . . . . . . . . . . . . . . . . . . 41

Sandin v. Conner,

515 U.S. 472 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

Shelby Cty. v. Holder, 

570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Smith v. Avino, 

91 F.3d 105 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

South Bay United Pentecostal Church v Newsom,

140 S. Ct. 1613 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23-4

Srail v. Vill. of Lisle, Ill., 

588 F.3d 940 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 

919 F.3d 1003 (7th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Trump v. Int'l Refugee Assistance, 

138 U.S. 353 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

Tuan Anh Nguyen v. I.N.S., 

533 U.S. 53 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

United States v. Chalk, 

441 F.2d 1277 (4th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23-4

U.S. v. Loria, 

No. 3:08 CR233–2, 2010 WL 1779998 (W.D.N.C. April 30, 2010) . . . . . . . . . . . . . . . . 27

USA-Halal Chamber of Commerce, Inc. v. Best Choice Meats, Inc., 

402 F. Supp. 3d 427 (N.D. Ill. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Valencia v. City of Springfield, 

883 F.3d 959 (7th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 15, 30-1

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W.A. Mack, Inc. v. Gen. Motors Corp., 

260 F.2d 886 (7th Cir. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Winter v. Natural Res. Def. Council, 

555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

Wisconsin Comm. Serv., Inc. v. City of Milwaukee, 

465 F.3d 737 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .34

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INTRODUCTION

We are living in extraordinary times. The deadly and highly infectious coronavirus 2019 

disease, or COVID-19, swept across the world with astonishing speed. The resulting pandemic has 

touched every corner of this State and altered residents’ lives in fundamental and unprecedented 

ways. More than three months ago, the Governor ordered Illinoisans to stay at home except to 

engage in essential activities. He also ordered nonessential businesses to limit their operations. 

Most residents embraced these public health measures and others, like practicing social distancing 

and donning face coverings. These decisive actions are now paying dividends. The devastating 

shortages of hospital beds and protective equipment that many experts feared have not materialized

in Illinois. To the contrary, the State is seeing fewer and fewer new cases every day.1 Meanwhile, 

infection rates are rapidly rising in other states where COVID-19 restrictions were either looser or 

lifted too soon.2

Recognizing this remarkable progress in Illinois, the Governor recently began to move 

forward with a measured plan to gradually relax the public health measures he had ordered to fight 

the COVID-19 pandemic. Residents are no longer required to stay at home. Most businesses may 

resume operations, though often with substantial limitations on capacity and with many other 

public health measures (e.g., face coverings and social distancing) remaining in place. But in the 

same way that it would be foolish to toss out “your umbrella in a rainstorm because you are not 

1 Coronavirus Resource Center, John Hopkins University & Medicine, Daily confirmed new cases (3-day 

moving average): Illinois, https://coronavirus.jhu.edu/data/new-cases-50-states/illinois (showing 

significant decline in new COVID-19 cases in Illinois since peak in mid-May). All internet resources 

cited in this memorandum were last visited June 26-28, 2020. This court may take judicial notice of this 

and other external information cited in this brief as they are facts that “can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

2 Coronavirus Resource Center, John Hopkins University & Medicine, Daily confirmed new cases (3-day 

moving average), https://coronavirus.jhu.edu/data/new-cases-50-states (showing significant increases in 

new COVID-19 cases in states like Arizona, Florida, South Carolina, and Texas).

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getting wet,” Cassell v. Snyders, No. 20 C 50153, 2020 WL 2112374, at *7 (N.D. Ill. May 3, 2020) 

(quoting Shelby Cty. v. Holder, 570 U.S. 529, 590 (2013) (Ginsburg, J., dissenting)), life has not 

returned completely to “normal.” As Illinois residents venture out and businesses open their doors, 

following public health guidance and the State’s measured and gradual approach ensures the recent 

improvement is not undone by a resurgence of the deadly virus.

As part of the State’s efforts to battle this pandemic, the Illinois Department of Human 

Services (“IDHS”) was required to suspend many of its programs for the safety and health of not 

only the participants in those programs, but also their families, roommates, and friends, and the 

public in general. One of the programs that was suspended was the Community Day Services 

program (“CDS”), which provides day-time activities, recreational programming, outings, and 

skill building activities for individuals with intellectual and developmental disabilities. Among 

other programs, some CDS providers like the Community Workshop and Training Center, Inc. 

(“CWTC”) provide pre-vocational skills training programs, which allow participants to learn job 

skills by working in a highly supervised setting. Plaintiff John McDonald has been a participant in 

CWTC’s program for many years, but he has not been attending this program with funding through 

the IDHS Division of Developmental Disabilities. He is eager, however, to now return to CWTC’s

program now that he has been determined eligible for Division-funded Home-Based Services, 

which includes funding for CDS. And IDHS is eager to restart its programs, including the CDS 

program, but not until it is safe to do so. Toward that end, as discussed in more detail below, IDHS

is working with the Illinois Department of Public Health (“IDPH”) to develop guidance and 

assessment tools that will enable CDS providers like CWTC to reopen safely, and as soon as 

possible without endangering their participants staff, and others.

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Through his motion, Plaintiff asks this Court to order a widespread and immediate 

reopening of the CDS program all across Illinois. [ECF #1 at p. 23]. This Court should deny 

Plaintiff’s motion. As an initial matter, Plaintiff lacks standing to demand such sweeping, classlike relief, which would affect thousands of people beyond just himself, especially as Plaintiff 

himself has never attended CWTC through the Division-funded CDS program. He does not purport 

to bring this matter as a class action, and therefore cannot obtain such class-like preliminary relief. 

Plaintiff’s demands also offend principles of federalism, which counsel strongly against federal 

interference in the State’s administration of its own affairs, especially during a public health

emergency. Through this lawsuit, Plaintiff asks that the Court force IDHS, a State agency, to fund 

and administer one of its own programs according to the wishes of one individual, while ignoring 

the counsel of the public health experts who continue to urge caution. Plaintiff is unlikely to 

succeed on the merits of the federal constitutional or statutory claims, he has not demonstrated that 

he will be subjected to irreparable harm absent Court intervention or that damages alone would 

not prevent such harm, and the balance of harms weighs strongly in favor of the State. If the State 

were compelled to prematurely reopen its programs, without sufficient time to develop adequate 

safety measures, the consequences could be devastating— both for the program participants and 

their families, as well as for the State and its residents. The law does not compel this tragic result.

BACKGROUND

The COVID-19 Pandemic Spreads Throughout the World.

COVID-19 is a novel severe acute respiratory illness that spreads easily through respiratory 

transmission, including by asymptomatic individuals. See generally Elim Romanian Pentecostal 

Church v. Pritzker, No. 20-1811, 2020 WL 3249062, at *1 (7th Cir. June 16, 2020) (“Elim II”); 

Elim Romanian Pentecostal Church v. Pritzker, No. 20 C 2782, 2020 WL 2468194, at *1 (N.D. 

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Ill. May 13, 2020) (“Elim I”); Cassell, 2020 WL 2112374, at *1, *2. The virus has infected millions 

of people all over the world and claimed the lives of hundreds of thousands. Elim I, 2020 WL 

2468194, at *1; Cassell, 2020 WL 2112374, at *2. As of today, 141,723 people have been infected

in Illinois, and 6,888 have died.

3

For months, millions of Americans, including Illinois residents, have fought to abate the 

virus by staying home, tempering the spread of the virus and reducing the estimated death toll.

E.g., Elim II, 2020 WL 3249062, at *1. Yet the threat of the virus has not passed, and there remains 

no vaccine or treatment available for COVID-19, or evidence that recovered individuals are 

immune to a second infection. Elim I, 2020 WL 2468194, at *1; Cassell, 2020 WL 2112374, at

*2. Given these dangers, the Centers for Disease Control and Prevention (“CDC”) urge Americans 

not to “gather in groups” and to “wear a cloth face cover when they have to go out in public”4

because “the virus can spread between people interacting in close proximity—for example, 

speaking, coughing, or sneezing—even if those people are not exhibiting symptoms.”5See also 

Elim II, 2020 WL 3249062, at *1.

The Governor Takes Action to Protect the State.

Faced with this unprecedented and ongoing public health emergency, on March 9, 2020, 

the Governor proclaimed the COVID-19 pandemic to be a “disaster” within the meaning of the

Illinois Emergency Management Agency Act, 20 ILCS 3305 et seq. (“Emergency Management 

3 State of Illinois, Coronavirus (COVID-19) Response, https://coronavirus.illinois.gov/s/.

4 CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html.

5 CDC, Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Significant 

Community-Based Transmission, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/clothface-cover.html.

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Act”)6. Section 4 of the Emergency Management Act defines a “disaster” to be “an occurrence or 

threat of widespread or severe damage, injury or loss of life or property resulting from any natural 

or technological cause,” including (as relevant here) both an “epidemic” and “public health 

emergencies.” Section 7, in turn, provides that, “[i]n the event of a disaster, as defined in Section 

4, the Governor may, by proclamation declare that a disaster exists” and, “[u]pon such 

proclamation . . . shall have and may exercise for a period not to exceed 30 days the following 

emergency powers.”

After proclaiming the COVID-19 pandemic to be a disaster on March 9, the Governor 

exercised his powers made available under the Emergency Management Act to issue a series of 

executive orders to stop the spread of COVID-19 and protect the healthcare system from being 

overwhelmed.7 Among these was Executive Order 2020-07, issued on March 16, which closed all 

bars and restaurants to in-person dining.8 On March 20, the Governor issued Executive Order 

2020-10, the first “stay at home” order,” which was effective for 17 days and required Illinoisans 

to practice social distancing by limiting nonessential activity outside their homes, remaining at 

least six feet apart from others, and refraining from gathering in groups of more than ten. Id.

The Governor issued proclamations declaring that the COVID-19 pandemic remained a 

disaster within the meaning of the Emergency Management Act on both April 1 and April 30, thus 

authorizing him to exercise emergency powers under the statute for an additional 30 days 

6 Gubernatorial Disaster Proclamation (Mar. 9, 2020), https://www2.illinois.gov/sites/gov/Documents/ 

CoronavirusDisasterProc-3-12-2020.pdf.

7 The Governor’s 40 executive orders relating to COVID-19 are available at https:// 

coronavirus.illinois.gov/s/resources-for-executive-orders.

8 Executive Order 2020-07 § 1 (Mar. 16, 2020), https://www2.illinois.gov/Pages/ExecutiveOrders/ExecutiveOrder2020-07.aspx.

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following each proclamation9. On both April 1 and 30, he exercised those emergency powers to

issue new “stay at home” orders, each of which was effective for 30 days and contained limitations 

similar to those set forth in the first such order. Id.

On May 29, 2020, the Governor issued a fourth proclamation declaring that the COVID19 pandemic remained a disaster within the meaning of the Emergency Management Act.

10 The 

Governor cited numerous facts in support of his determination. He noted that, “although the 

number of new COVID-19 cases has stabilized and potentially begun to decrease in recent weeks,

the virus continues to infect thousands of individuals and claim the lives of too many Illinoisans.” 

Id. And he noted that while prior orders reduced COVID-19’s spread, “the State’s modeling 

continues to show that without extensive social distancing and other precautions, the State will 

face a shortage of hospital beds, ICU beds, and/or ventilators.” Id.

Taking into account both the State’s success in limiting the spread of COVID-19 and the 

ongoing threat of a resurgence, the Governor exercised his powers under the Emergency 

Management Act on May 29 to issue Executive Order 2020-38 (“EO38”). EO38 does not instruct 

Illinois residents to stay at home but rather requires them to take “public health steps to protect 

their own and their neighbors’ health and lives” when they venture out, including practicing social 

distancing, wearing a face covering, and limiting gatherings to ten or fewer people. Id. In addition, 

EO38 sets forth mandatory safety measures based primarily on business function. Id. Many

businesses have been allowed to reopen subject to capacity limits and requirements that their 

9 Gubernatorial Disaster Proclamation (Apr. 1, 2020), https://www2.illinois.gov/Pages/ExecutiveOrders/ExecutiveOrder2020-18.aspx; Gubernatorial Disaster Proclamation (Apr. 30, 2020), 

https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx

10 Gubernatorial Disaster Proclamation (May 29, 2020), https://www2.illinois.gov/Pages/ExecutiveOrders/ExecutiveOrder2020-38.aspx

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employees and customers practice social distancing and observe other public health guidance. 

Nonprofit organizations were allowed to reopen subject to these restrictions. Id.

EO38 is consistent with the Governor’s intention to reopen Illinois in accordance with 

scientific principles and public health guidance, as outlined in his Restore Illinois plan.11 Guided 

by health metrics, the plan maps out how restrictions for different regions of the State will relax 

as the rates of infection and hospital admissions due to COVID-19 plateau and then decline. Id. at 

3-4. Illinois is now in Phase 4

12 because the number of new COVID-19 cases is steadily decreasing. 

This Phase permits all gatherings of up to 50 people, subject to social distancing and the use of 

face coverings, and permits – but does not mandate – the reopening of the following 

establishments: all health care providers, P-12 schools, higher education, all summer programs, 

child care, manufacturing, non-essential businesses, bars and restaurants, personal care services 

and health clubs, entertainment, and retail. Important to note is the caveat included beside every 

establishment permitted to reopen – with IDPH-approved safety guidance. Restore Illinois at 9.

And, finally, regions of Illinois will enter Phase 5, which does not limit any gathering, only when 

there are “no new cases over a sustained period,” or there is a vaccine or treatment. Id. at 10. It 

should be noted that these phases are not a one-way process: should the infection rates increase, 

or hospital resources become less available, Illinois will return to more restricted phases of the 

process. Id.

11 Office of the Governor, “Restore Illinois: A Public Health Approach to Safely Reopen Our State,” 

https://coronavirus.illinois.gov/sfc/servlet.shepherd/document/download/069t000000BadS0AAJ?operatio

nContext=S1 (“Restore Illinois”).

12 https://coronavirus.illinois.gov/s/restore-illinois-regional-dashboard.

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IDHS’s Community Day Services Program

IDHS, through its Division of Developmental Disabilities (the “Division”), serves over 

30,000 individuals with intellectual and developmental disabilities across Illinois through a 

number of programs. The Division provides services directly through seven State Operated 

Developmental Centers (“SODCs”), ranging in size from 100 to nearly 500 individuals. In 

addition, the Division provides funding, regulation and licensure of Community Integrated Living 

Arrangements (“CILAs”), smaller, community-based residential settings which house up to 8 

individuals, Home Based Services, which provides funding for services and supports for 

individuals who reside at home, and CDS, which provides day programming and services. The 

Division also provides funding and guidance for congregate residential facilities that are regulated 

by IDPH: Intermediate Care Facilities for the Developmentally Disabled (“ICF/DDs”), ranging in 

size from six to over 200 residents, and Community Living Facilities (“CLFs”), which house up 

to 12 individuals. [Declaration of Allison Stark (“Stark Decl.”), attached hereto as Exhibit 1, at ¶ 

2]. 

CDS is a day service program that operates generally from 9 a.m. to 5 p.m., Monday 

through Friday. The program assists individuals with developing various adaptive skills, engaging 

in appropriate behavior, increasing independence, and providing socialization in a non-residential 

setting. CDS programs range in size from small, community programs designed to facilitate 

community integration, to large, congregate workshops. CDS programs vary in size, serving 

between 30 and 500 individuals, with the average serving approximately 100 individuals. The

programs also assist in developing employment skills and participants’ ability to engage in 

productive work activities through a focus on such habilitative goals as compliance, attendance, 

and task completion. Activities offered through the program include job exploration activities and 

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job skills training, volunteer work, recreation, educational experiences in natural community 

settings, and purposeful activities and services where persons without disabilities are present. 

Certain employment-related programs include sub-minimum wage skill development programs in 

which participants perform “piece work” for manufacturers with the goal of competitive integrated 

employment. [Stark Decl. at ¶ 2].

To be eligible to receive funding through the Division for CDS, an individual must meet a 

number of criteria. First, the individual must have an IQ of below 70, a related condition such as 

cerebral palsy or epilepsy, or a related condition that similarly impairs general intellectual 

functioning or adaptive behavior. In addition, the individual must be experiencing substantial 

limitations in three or more major life skills areas. The life skills areas are: (1) self-care; (2) 

language; (3) learning; (4) mobility; (5) self-direction; and (6) capacity for independent living.

[Stark Decl. at ¶ 3]; see also Determination of Disability & Associated Treatment Needs: 500.10 

Purpose and Definitions, available at https://www.dhs.state.il.us/

page.aspx?item=53024.

CDS programs are utilized by individuals in both congregate and home-based settings. Of 

the 21,000 individuals with intellectual or developmental disabilities who attend CDS programs, 

approximately 11,000 reside in CILAs, 3,600 reside in private ICF/DDs, 800 reside in SODCs and 

33 reside in CLFs. [Stark Decl. at ¶ 2]. Over 70% of all CDS participants live in congregate 

settings. [Stark Decl. at ¶ 7].

Illinois is not the only state to temporarily suspend its CDS program as a result of the 

COVID-19 public health emergency. States with significant COVID-19 infections, such as New 

York and New Jersey also suspended their CDS programs, which remain closed as of this filing.

[Stark Decl. at ¶21] Other states with lesser rates of infection have begun to reopen, but are 

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instituting restrictions on who is eligible to attend. For example, Minnesota, while allowing its 

CDS programs to reopen, is not allowing any individual who resides in a congregate setting to 

attend—only those living at home or with family may participate.13 And Connecticut is planning 

for a phased reopening, with CDS providers required to submit detailed individual reopening 

plans.14 Such measured, and well-planned, reopenings are required to guard against the public 

health risks associated with COVID-19. 

Plaintiff is a participant in CWTC’s program. Through CWTC’s job skills training 

program, intellectually or developmentally disabled individuals work to package parts for 

Caterpillar Inc. through CWTC’s contract with Caterpillar. Some participants are funded through 

IDHS’s CDS program, while others pay CWTC out-of-pocket, i.e., they are private-pay 

participants in the program. IDHS provides funding for approximately 100 individuals with 

intellectual and/or developmental disabilities in CWTC’s CDS program (Stark Decl. ¶17), but 

CWTC reports that it has approximately 200 individuals enrolled in its program.15 The Division 

pays CWTC $12.79 per hour for each Division-funded participant.

16 The other 100 participants 

are presumably private-pay participants.

13 See Chris Sertes, “Minnesota disability service providers on the brink of collapse from COVID-19, Star 

Tribune (June 25, 2020), available at https://www.startribune.com/virus-leaves-disability-serviceproviders-on-brink-of-collapse/571488372/.

14 See Jordan A. Scheff, Commissioner of Connecticut Dept. of Developmental Services, Mem. to DDS 

Providers re: Reopening of Employment and Day Services, available at https://portal.ct.gov/-

/media/DDS/COVID-19/DDS_Employment_and_Day_Services_reopening_memo_FINAL_6_10_20.pdf.

15 See Organizational Employment, Community Workshop and Training Center, Inc., available at 

https://www.cwtc.org/organizational-employment/ (“Our workforce of 200 people now process and 

allocate more than half a million pieces of work for CAT each week.”).

16 This is the rate that IDHS pays CDS providers, such as CWTC, for each CDS participant. [Stark Decl. 

¶17.] IDHS does not know whether private-pay participants pay more or less to participate in CWTC’s 

program.

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For more than 20 years, it is assumed, Mr. McDonald has been a private-pay participant 

in CWTC’s job skills training program, as he was only approved for IDHS funding on March 26, 

2020, after CDS programs had been suspended due to COVID-19. See Declaration of Karen Haney 

(ECF 8) ¶ 6; Stark Decl. ¶¶ 15-16. To be clear, IDHS has never actually paid for Mr. McDonald 

to attend any day services program, including CWTC. [Stark Decl. ¶ 16]

As a nonprofit entity, technically speaking, CWTC has been free to reopen to its privatepay participants since the State entered Phase 3 on May 29, 2020. EO38 ¶ 3. However, IDHS

continues to believe that it is not yet safe to reopen the Division-funded CDS program without 

appropriate steps and safeguards in place. As discussed below, IDHS has been working diligently 

to safely reopen the program with appropriate guidance for both providers and participants to 

prevent the spread of COVID-19. 

COVID-19 and Individuals with Intellectual or Developmental Disabilities 

As Dr. Susan Bleasdale, an infectious disease expert working with IDPH explains, CDC 

guidance states that individuals with intellectual and developmental disabilities are “at increased 

risk of becoming infected or having unrecognized illness.” [Declaration of Susan Casey Bleasdale, 

M.D. (“Bleasdale Decl.”), attached hereto as Exhibit 2, at ¶3] Research indicates that people with 

developmental disabilities who live in group homes have some of the highest death rates from 

COVID-19 in the country. [Stark Decl. ¶ 14] In fact, they are four times more likely to contract 

COVID-19 than the general population, and if they do contract it, they are approximately twice as 

likely to die from it. Id. Researchers cite two main reasons for this increased risk: (1) people with 

developmental disabilities are far more likely to have a pre-existing health condition, such as 

respiratory disease, that adds to their risk; and (2) they are much more likely than even elderly 

people to live in a setting with roommates and staff, which greatly increases risk of transmission, 

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should one resident become infected. Id. ¶¶ 2, 14. With respect to individuals with intellectual and 

developmental disabilities in Illinois, and specifically those housed in the above-referenced CILA 

settings, 23% have Health Care Level scores that indicate that they are particularly vulnerable to 

COVID-19 complications due to pre-existing medical conditions. Twenty-six percent are over the 

age of 50, and an additional 16% are over the age of 65. Id. at ¶ 13. Finally, 4% have a Q score in 

their Health Care Level, which indicates a significant medical complication that puts those 

individuals at increased risk for fatality should they contract COVID-19, and includes individuals 

already on ventilators and with tracheotomies. Id.

As of June 26, 2020, there were 396 reported positive cases of COVID-19 in residents of 

five of the seven SODCs, and another 270 staff infections. Ten residents and four staff have died

as a result. The fatality rate among SODC residents is approximately 25.8%. See

https://www.dhs.state.il.us/page.aspx?item=125170, Stark Decl. ¶ 9. CILA settings have selfreported 331 resident cases, with providers reporting between one and 20 cases. CILA deaths (selfreported by providers) have totaled 25, resulting in a 7.55% fatality rate. See

https://www.dhs.state.il.us/page.aspx?item=12570; Stark Decl. ¶ 10.

The CWTC program Plaintiff attends serves approximately 200 individuals, with 100 of 

those individuals funded through the Division. Nearly half of these Division-funded individuals

with intellectual and developmental disabilities live in congregate settings. Thirty-three (33) 

individuals live in a CLF, and sixteen (16) live in a CILA. [Stark Decl. ¶17]

The danger of transmission from congregate setting to congregate setting has unfortunately 

already been established in Illinois. [Bleasdale Decl. at ¶ 5] In addition, one of the earliest instances 

of COVID-19 spread within Division-funded programs occurred as a result of one CDS program.

Recipients travelling together from the CDS site, where a driver was infected with COVID-19, led 

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to additional cases in two separate IDF/DD facilities, one CILA, and in the home of a recipient of 

Home-Based Services. Two individuals died as a result of their COVID-19 infections. [Stark Decl. 

¶12]

IDHS’s Plan to Reopen the CDS Program

CDS programs in Illinois have been temporarily suspended since March 17, 2020, but the 

Division has continued to work to develop appropriate standards, tools, and guidelines to allow 

CDS and other programs to reopen safely and minimize the risk of the spread of COVID-19. [Stark 

Decl. ¶¶ 6, 19-26; Bleasdale Decl. ¶ 6]

The Division has been working with IDPH to create reopening guidance, and has studied 

other states guidance, consulted with the National Association of State Developmental Disability 

Directors (NASDDD) on best practices and participated in a workgroup developing best practices 

on CDS reopening. [Stark Decl. ¶22; Bleasdale Decl. ¶6] The Director of the Division personally 

met with CDS providers, families, associations and residential providers to hear and understand 

their concerns. [Stark Decl. ¶22] The Division also issued a survey to CDS providers to gauge 

readiness and concerns on reopening, and has worked closely with the Illinois Department on 

Aging as they also operate a congregate day program, which has also not yet reopened. [Stark 

Decl. ¶22] Based on these ongoing discussions, and following IDPH and CDC guidelines, the 

Division created two tools and a guidance document to assist and inform the reopening of CDS 

sites, with an anticipated gradual reopening as early as August 1, 2020. [Stark Decl. ¶22]

The tools and guidance for CDS participants and providers involve the following: First, 

there is an individualized risk/benefit tool, to initiate discussions with participants in CDS 

programs. [Stark Decl. ¶23] This tool is based on one developed for use in Ohio, and is intended 

to help weigh the desire of an individual to return to CDS against the individual risk, situational 

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risk, health risk, and potential impact on the individual’s household. [Stark Decl. ¶23] Second, 

there is a Provider Readiness tool, based on a tool developed by Hawaii’s Division of 

Developmental Disabilities, that assists providers in developing strategies to mitigate risk within 

their facilities. [Stark Decl. ¶24] Finally, the Division has worked with IDPH to develop guidance 

to providers on group size, use of PPE, disinfection schedules, safe transportation strategies and 

other ways to ensure any transmission risk of COVID-19 is minimized to the greatest extent 

possible. [Stark Decl. ¶25; Bleasdale Decl. ¶¶ 2, 6]

Once the guidance and tools are released, which is anticipated to be as early as July 1, 

2020, providers will need some time to develop procedures, engage with families, Independent 

Service Coordination (“ISC”) agencies, and individuals to conduct individualized risk/benefit 

assessments, and prepare for reopening. It is anticipated that this process will take at least one 

month. [Stark Decl. ¶26, 27] While it is not anticipated that all providers will be able to reopen in 

August, providers that are able to complete these tools and follow the guidance and demonstrate 

that they can reopen safely, will be able to open as early as August 1, 2020. [Stark Decl. ¶28] The 

Division anticipates that the remainder of CDS providers will be able to reopen by September 1, 

2020. It should be noted that the need for guidance and time to implement appropriate safeguards 

is something about which both the Illinois Association of Rehabilitation Facilities (“IARF”) 

(Illinois’ largest association of community-based providers serving children and adults with 

intellectual/developmental disabilities) and the ARC (a statewide coalition of individuals with 

disabilities, families, and community organizations), agree. [Declaration of Joshua G. Evans 

(“Evans Decl.”), attached hereto as Exhibit 3, at ¶¶ 5-7; Declaration of Margaret Cooch (“Cooch 

Decl.”), attached hereto as Exhibit 4, at ¶3]

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LEGAL STANDARD

“The standards for granting a temporary restraining order and a preliminary injunction are 

the same.” USA-Halal Chamber of Commerce, Inc. v. Best Choice Meats, Inc., 402 F. Supp. 3d 

427, 433 n.5 (N.D. Ill. 2019). Each is an “extraordinary and drastic remedy,” Checker Car Club of 

Am., Inc. v. Fay, 262 F. Supp. 3d 621, 626 (N.D. Ill. 2017), that is “never awarded as of right” and 

“never to be indulged in except in a case clearly demanding it,” Orr v. Shicker, 953 F.3d 490, 501 

(7th Cir. 2020). Injunctive relief “should not be granted unless the movant, by a clear showing, 

carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in 

original); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 

1998). 

“To determine whether a situation warrants such a remedy, a district court engages in an 

analysis that proceeds in two distinct phases: a threshold phase and a balancing phase. To survive 

the threshold phase, a party seeking a preliminary injunction must satisfy three requirements. He

must show that: (1) absent a preliminary injunction, he will suffer irreparable harm in the interim 

period prior to final resolution of his claims; (2) traditional legal remedies would be inadequate; 

and (3) his claim has some likelihood of succeeding on the merits. If the moving party satisfies 

each of these requirements, the court proceeds to the balancing phase of the analysis. In the 

balancing phase, the court weighs the irreparable harm that the moving party would endure without 

the protection of the preliminary injunction against any irreparable harm the nonmoving party 

would suffer if the court were to grant the requested relief. . . . Where appropriate, this balancing 

process should also encompass any effects that granting or denying the preliminary injunction 

would have on nonparties (something courts have termed the ‘public interest’).” Valencia v. City 

of Springfield, 883 F.3d 959, 965 (7th Cir. 2018). The court should pay “particular regard for the 

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public consequences in employing the extraordinary remedy of injunction.” Winter v. Natural Res. 

Def. Council, 555 U.S. 7, 24 (2008).

Here, Plaintiff’s burden is even greater than usual because, rather than seeking to preserve 

the status quo, he seeks mandatory interim relief directing IDHS to begin paying for him to attend 

the CDS program (when it never has before), and further to immediately restart the CDS program. 

Mandatory injunctions are “rarely issued,” interlocutory mandatory injunctions are “even more 

rarely issued,” and neither should be issued “except upon the clearest equitable grounds.” W.A. 

Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958); see also Graham v. Med. Mut. 

of Ohio, 130 F.2d 293, 295 (7th Cir. 1997) (“[M]andatory preliminary writs are ordinarily 

cautiously viewed and sparingly issued.”); Chicago United Indus. v. City of Chicago, 445 F.3d 

940, 945-46 (7th Cir. 2006).

Not only does Plaintiff seek mandatory relief, the interim injunction he requests in his

motion would give him substantially all the relief he seeks through this lawsuit. In such cases, the 

plaintiff’s burden is even higher. See, e.g., Boucher, 134 F.3d at 827 n.6 (“A preliminary injunction 

that would give the movant substantially all the relief he seeks is disfavored, and courts have 

imposed a higher burden on a movant in such cases.”); W.A. Mack, 260 F.2d at 890 (“A preliminary 

injunction does not issue which gives to a plaintiff the actual advantage which would be obtained 

in a final decree.”).

ARGUMENT

During argument on June 25, 2020, Plaintiff’s counsel alternated between asserting that 

the only relief sought by Mr. McDonald is that he be permitted to return to CWTC, and asserting

that the Court should order the immediate statewide reopening of the CDS program. [June 25, 

2020 Transcript 16:7-16; ECF #1 at 23]. These are two very different requests for relief, varying

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greatly in scope and implementation. And Plaintiff’s complaint reveals that the relief he seeks is 

not, in fact, limited to his ability to return to CWTC; rather, he seeks a temporary restraining order 

or preliminary injunction restraining Defendants from “[m]andating the continued shuttering of 

CWTC,” and from “enforcing the statewide closure of all Community Day Services programs 

through at least August 31, 2020.” [ECF #1 at p. 23]. 

Aside from the legal problems with Plaintiff’s requested relief, addressed below, there is 

the additional issue of factual misrepresentation. Plaintiff makes the inflammatory statement that 

despite Illinois’ move to Phase 4 of the Restore Illinois Plan, CWTC remains “shuttered” due to 

IDHS’s unwillingness to reopen the CDS program. This is untrue. CWTC is free to resume its 

operations, while following appropriate safety protocols, as are other businesses in Illinois. See

EO38 ¶ 3. The only difference relevant to this case is that until CDS resumes operation, CWTC, 

along with other providers of CDS services, will not receive subsidies from IDHS for offering a 

work training program to Mr. McDonald or other individuals with intellectual or developmental 

disabilities. However, this does not mean CWTC is “shuttered” by the State or even prohibited 

from restarting its work training program for intellectually and developmentally disabled

individuals – if it wishes to do so, it is free to move forward by making use of private-pay 

agreements (explained infra at page 10), despite being contrary to the the Division’s public health 

concerns. And based on the very limited information that Plaintiff has provided, CWTC is 

apparently doing exactly that. See ECF #9-15. Through these agreements, the families or guardians 

of individuals with intellectual or developmental disabilities who wish to participate in work 

training programs pay the providers directly for program participation, as opposed to the payment

being made by IDHS. In fact, it was via such a private-pay agreement that Mr. McDonald 

participated in the CWTC program for almost 20 years, until he was recently approved, on March 

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26, 2020, for Division-funded Home Based Services, which will pay for his participation in the 

CDS program. [Stark Dec. at ¶ 15]. There is nothing precluding him from resuming his prior

arrangement now, despite the Division’s position on the Division-funded CDS program and its 

public-health-based belief that CDS is not ready to reopen safely absent further guidance, 

assessment tools, and time for implementation.

I. Plaintiff Is Unlikely to Succeed on the Merits of His Claims.

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 

the merits. Winter, 555 U.S at 20. To meet his initial burden, Plaintiff must show that he has a 

“better than negligible” chance of success on the merits. Roland Mach. Co., 749 F.2d at 387. Where 

it is more likely than not that a defendant will prevail, injunctive relief is improper, particularly 

where the balance of harms tips decidedly in favor of the defendant. See Boucher, 134 F.3d at 826-

27, 829. Even if a plaintiff makes the required showing, the court must determine how likely it is 

that the plaintiff actually will succeed: “The more likely the plaintiff is to win, the less heavily 

need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh 

in his favor.” Roland Mach. Co., 749 F.2d at 387. Moreover, when there are “two equally credible 

versions of the facts the court should be highly cautious in granting an injunction without the 

benefit of a full trial.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1440 (7th Cir. 1986) 

(citation omitted).

Here, Plaintiff has no chance of success on the merits, and his motion should be denied for 

that reason alone.

A. Plaintiff does not have standing to request the far-reaching relief he seeks.

Through this action, Plaintiff seeks an injunction that would implicate not only his own 

health and safety, but also the health and safety of thousands of other individuals across Illinois. 

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By claiming that this Court should order the immediate, statewide reopening of the CDS program, 

Plaintiff assumes that every other individual involved in the CDS program shares his opinion that 

the delayed opening of the program is due to discriminatory animus on the part of IDHS, as well 

as that to return immediately would pose no greater risk to any of the individuals in the program 

than to the general population at large. A request for such sweeping relief would only be 

appropriate in the context of a class action suit after class certification, once there has been a 

finding that the named plaintiff “fairly and adequately protect[s] the interests of the class.” Ploss 

as Trustee for Harry Ploss Trust DTD 8/16/1993 v. Kraft Foods Group, Inc., 431 F.Supp.3d 1003, 

1011 (N.D. Ill. 2020). However, to be an adequate representative, the named plaintiff “must be 

part of the class and possess the same interest and suffer the same injury as the class members.” 

Id. (citing Conrad v. Boiron, Inc., 869 F.3d 536, 539 (7th Cir. 2017). Here, Plaintiff neither 

purports to bring this suit as a class action nor attempts to establish that his claimed situation

represents the intellectually and developmentally disabled persons involved in the CDS program 

as a whole. It is thus wholly inappropriate for him to demand such far-reaching relief, which would 

affect not only his rights, but the rights of thousands of other unrepresented individuals as well.17

See Stark Decl. at ¶¶ 2, 7-13, 20, 25, 27.

B. Granting the relief Plaintiff seeks would require a violation of the principles 

of federalism.

“One of the most important considerations governing the exercise of equitable power is a 

proper respect for the integrity and function of local government institutions.” Money v. Pritzker, 

17 Moreover, any attempt to bring this matter as a class action would fail at the outset. because each class 

member would need to be individually assessed in order to determine whether it appropriate for him or 

her to return to a CDS program, precluding any finding of commonality. See Money v. Pritzker, Nos. 20-

cv-2093 & 20-cv-2094, 2020 WL 1820660, at *15 (N.D. Ill. Apr. 10, 2020) (noting that in instances 

where each putative class member comes with a unique situation – whether it be age, medical history, 

proximity to others who may be infected, likelihood of transmitting the virus to someone else, etc. – the 

“imperative of individualized determinations . . . makes [such a] case inappropriate for class treatment”). 

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Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660, at *15 (N.D. Ill. Apr. 10, 2020) (citing 

Missouri v. Jenkins, 495 U.S. 33, 51 (1990)). Plaintiff’s request for a sweeping injunction 

mandating the statewide reopening of a State-administered program runs afoul of this principle. 

The United States Supreme Court has recognized that where “the exercise of authority by state 

officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the 

adjustment to be preserved between federal equitable power and the State administration of its 

own law.’” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (citation omitted). Even in suits between 

private parties, injunctions are “to be used sparingly, and only in a clear and plain case.” Id. When 

a plaintiff seeks to enjoin the activity of a government agency, however, “his case must contend 

with the well-established rule that the Government has traditionally been granted the widest 

latitude in the dispatch of its own internal affairs.” Id. at 378-79 (citations and internal quotations 

omitted) (noting also that an injunctive order issued by a district court that significantly revised 

the internal procedures of the Philadelphia police department was “indisputably” a sharp limitation 

on the department’s latitude in the dispatch of its own affairs, and reversing and remanding the 

district court’s decision). 

Courts within the Northern District of Illinois have acknowledged that the judiciary is illequipped to manage decisions regarding programs and/or populations that are generally left to the 

State executive branch. See, e.g., Money, 2020 WL 1820660, at *16 (“The judiciary is ill-equipped 

to manage decisions about how best to manage any inmate population – let alone a statewide 

population of tens of thousands of people scattered across more than a dozen facilities. And the 

concern about institutional competence is especially great where, as here, there is an ongoing, fastmoving public health emergency.”). Here, Plaintiff seeks relief that would override the judgment 

of Illinois Department of Human Services officials and Illinois Department of Public Health 

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officials who have determined that it is not yet safe to restart the CDS program, and the position 

of the association of the very providers who operate these services and those that receive them. 

See Stark Decl. ¶¶ 19-28, 32; Bleasdale Decl.¶¶ 2-6; Evans Decl. ¶¶ 5-7; Cooch Decl. ¶ 3.

Federalism principles counsel strongly in favor of abstention for another reason: the 

breadth of Plaintiff’s requested relief both vastly misrepresents the complexity of the issues at play 

and demonstrates a grave misunderstanding of the functioning of the CDS program. Plaintiff 

demands that this Court mandate that a State agency, IDHS, manage one of its programs in a 

particular way, solely based on the wishes of one individual who does not represent the other 

program participants, and who has in fact, never participated in the Division-funded program he 

wishes to mandatorily enjoin. Since the onset of COVID-19, officials in charge of administering 

the CDS program and developing adequate safety protocols have fielded countless calls from 

family members of CDS participants who have expressed serious concerns about resumption of 

the program while the risk from COVID-19 remains. [Stark Decl. at ¶ 20, 25, 27]. Of course, an

order compelling IDHS to restart the CDS program immediately is not coterminous with an order 

mandating that all CDS participants immediately return to participating in the program. However, 

it is crucial to understand that thousands of individuals who participate in the CDS program also 

live in group homes with up to eight other individuals with intellectual and developmental 

disabilities, or in even larger congregate facilities, housing many more. [Stark Decl. at ¶ 2, 8-12]. 

If the program is ordered reopened immediately, it is possible (if not likely) that other individuals 

in addition to Mr. McDonald will choose to return prior to the implementation of IDHS

recommended safety protocols. It is also likely that at least some of those individuals will be 

residents of CILAs, SODCs, ICF/DDs or CLFs. Not only will the lack of identified and 

implemented safety protocols impact the individuals in attendance, it necessarily follows that many 

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individuals with intellectual and developmental disabilities who have chosen not to return to the 

CDS program prior to implementation of safety protocols (and who may be at higher risk for 

infection and/or complications due to underlying health conditions) may nonetheless be exposed 

to infection by housemates who choose to return early. [Bleasdale Decl. ¶ 5] An order granting the 

broad relief Plaintiff seeks will necessarily affect the health and safety of thousands of people 

beyond just himself, a fact Plaintiff does not address in his motion and did not address at argument. 

C. IDHS’s decisions regarding when to restart the CDS program are entitled to 

deference under Jacobson.

Illinois, along with the rest of the world, is in the throes of an unprecedented public health 

crisis that has brought normal life to a halt. In an extraordinary public health crisis such as this, the 

State has broad emergency powers that it may exercise to protect public health, and courts are to

afford deference to temporary actions taken to curb the spread of a dangerous disease and mitigate 

its effects.

It is well established that “the rights of the individual in respect of his liberty may at times, 

under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable 

regulations, as the safety of the general public may demand.” Jacobson v. Commonwealth of 

Massachusetts, 197 U.S. 11, 29 (1905). COVID-19 qualifies as the kind of public health crisis 

contemplated in Jacobson. Cassell v. Snyders, No. 20 C 50153, 2020 WL 2112374, at *7 (N.D. 

Ill. May 3, 2020). As such, in this instance, the actions taken by IDHS to prevent the transmission 

of COVID-19 should be upheld so long as there is a “real and substantial relation” to public health 

and safety, and the action does not constitute “beyond all question, a plain, palpable invasion of 

rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. 

Here, IDHS’s actions are entitled to deference under Jacobson. First, IDHS’s decision to 

temporarily suspend the CDS program while it finalizes plans to safely reopen the program is 

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undoubtedly related to public health. Second, the decision to temporarily suspend a State-run 

program is not a clear invasion of Plaintiff’s fundamental rights, especially as alternative options 

have been offered. As such, IDHS’s decisions, made after extensive consultations with public 

health officials and experts, about how to safely resume the CDS program should be afforded 

extreme deference under Jacobson. See South Bay United Pentecostal Church v Newsom (“South 

Bay”), 140 S. Ct. 1613, at *1 (2020) (Roberts, C.J., concurring).

At the hearing on Plaintiff’s Motion for a Temporary Restraining Order on June 25, 2020, 

Plaintiff asserted, without any legal basis, that the Jacobson standard does not apply to claims 

brought under the ADA or Rehabilitation Act. June 25, 2020 Hearing Transcript at 11:24-12:4. 

This argument misunderstands the premise of Jacobson, which is intended to provide deference to 

state decisions necessary to protect the public health, even if those decisions impact individual 

rights. Jacobson, 197 U.S. at 26. Courts have recognized that “[t]he invocation of emergency 

powers necessarily restricts activities that would normally be constitutionally protected.” United 

States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971). 

Unquestionably, Jacobson only applies in extraordinary circumstances. Jacobson, 197 

U.S. at 39. As such, the courts have not had the opportunity to explore the contours of how 

Jacobson applies across a swath of different scenarios. However, the ongoing pandemic is 

undeniably one of the extraordinary circumstances contemplated by Jacobson, and the Supreme 

Court has provided clear guidance as to how Jacobson should be applied as it relates to COVID19. See South Bay, 140 S. Ct. at *1 (Roberts, C.J., concurring). In his concurrence in South Bay 

United Pentecostal Church, where the Court denied a request for injunctive relief related to 

religious gatherings, Chief Justice Roberts illustrated the ultimate significance of Jacobson, which 

is to recognize that during a public health crisis it is imperative that State officials have wide 

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latitude to take action designed to protect the public health. Id. at *1. Specifically, the Chief Justice 

stated that State officials “should not be subject to second-guessing by an ‘unelected federal 

judiciary,’ which lacks the background, competence, and expertise to assess public health and is 

not accountable to the people.” Id.

Plaintiff’s position that Jacobson does not apply to the ADA and the Rehabilitation Act 

ignores the purpose of Jacobson, as clearly explained in South Bay. Plaintiff focuses on the lack 

of an exception for “clear textual requirements” of the ADA and Rehabilitation Acts. Transcript 

at 11:25-12:4. But Jacobson did not contemplate statutes that had not yet been written, or even 

contemplated by the legislature, when it issued this opinion. Jacobson addressed fundamental 

rights, the most significant rights afforded by the Constitution, and recognized that even those 

rights can be curtailed when necessary to protect the public health. Jacobson, 197 U.S. at 38. The 

reasonable reading of Jacobson, as illustrated by South Bay, is that the required deference to the 

executive branch applies to state decisions across the board during a public health emergency, not 

only those that may impact a fundamental right. As the COVID-19 pandemic is exactly the type 

of extraordinary public health situation contemplated by Jacobson, the courts should give 

significant deference to state decisions as to how to address COVID-19, including the decision to 

temporarily close certain IDHS programs and how best to reopen them. Cassell, No. 20 C 50153, 

2020 WL 2112374, at *7.

To combat a virulently infectious disease in an emergency pandemic, the State must be 

able to take swift and decisive action. Cf. Chalk, 441 F.2d at 1281. The court’s review of temporary 

measures during such an emergency is therefore “limited to a determination of whether the 

[State’s] actions were taken in good faith and whether there is some factual basis for [the State’s] 

decision that the restrictions [it] imposed were necessary to maintain order.” Id.; see also Jacobson, 

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197 U.S. at 29 (“reasonable regulations” may be implemented in the face of an infectious disease 

epidemic). This deferential standard recognizes that, in a public health crisis, “it is no part of the 

function of a court . . . to determine which one of two modes was likely to be the most effective 

for the protection of the public against disease,” Jacobson, 197 U.S. at 30, and that “governing 

authorities must be granted the proper deference and wide latitude necessary for dealing with . . . 

emergenc[ies].” Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on other grounds 

by Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).

Here, there is no question that IDHS’s actions were taken in good faith. Notwithstanding

Plaintiff’s baseless, ridiculous, and insulting allegations of bigotry and cruelty, the Division and 

its staff are dedicated to serving the interests and meeting the needs of individuals with intellectual 

and developmental disabilities. Employees like Director Stark and many others have dedicated 

their lives to that mission, and certainly have no wish to cause anyone harm. On the contrary, 

IDHS’s decisions regarding when and how to reopen the CDS program are based, fundamentally 

and completely, on the best interests of the individuals with intellectual and developmental 

disabilities that they serve. Additionally, the good faith of the Division in suspending CDS 

programs and postponing reopening until tools and appropriate guidance are in place is supported 

by the fact that Illinois is not the only state to take such action. As previously noted, New York 

and New Jersey’s CDS programs also remain closed [Stark Decl. ¶21], and Connecticut and 

Minnesota (a state with a far lower infection rate than Illinois18) are only now partially opening 

their CDS programs, but only to those who live at home and not in congregate settings.

18 Per the website for Minnesota’s Department of Public Health, as of June 28, 2020, Minnesota has had a 

total of 35,549 COVID-19 infections, compared to Illinois’ 141,723. Compare

https://www.health.state.mn.us/diseases/coronavirus/situation.html with http://dph.illinois.gov/covid19.

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Moreover, IDHS’s decisions regarding reopening the CDS program are supported by 

evidence. As discussed above, IDHS has been developing its reopening plan in consultation with 

the infectious disease experts at IDPH. [Bleasdale Decl. ¶¶ 2, 6; Stark Decl. ¶¶ 19-26] In addition 

both IARF and the ARC are in agreement with the Division’s decisions on both closing CDS 

programs, and the need for tools, guidance, and time to implement safety procedures. [Evans Decl. 

¶5-7; Cooch Decl. ¶3] For these reasons, IDHS’s decision regarding the timetable for reopening 

the CDS program is entitled to deference, and Plaintiff’s motion should be denied for this reason 

alone. 

D. Plaintiff is not likely to succeed on the merits of his claims.

In addition to failing under the deferential standard afforded to emergency public health 

and safety measures taken by the State, Plaintiff’s claims also fail under the usual statutory and 

constitutional framework.

1. ADA/Rehabilitation Act

Plaintiff alleges that IDHS’s decision to temporarily suspend the CDS program violates his 

rights under the ADA and the Rehabilitation Act. Title II of the ADA states that “[N]o qualified 

individual with a disability shall, by reason of such disability, be excluded from participation in or 

be denied the benefits of the services, programs, or activities of a public entity, or be subject to 

discrimination by any such entity.” 42 U.S.C. § 12132. The Rehabilitation Act provides almost 

identical antidiscrimination provisions for any program that receives federal funding; as such, 

courts use the same analysis for claims under both Acts. Radaszewski ex rel. Radaszewski v. 

Maram, 383 F.3d 599, 607 (7th Cir. 2004). Here, Plaintiff is unlikely to succeed on his statutory

claims

19 as he cannot show that IDHS discriminated against him on the basis of his disability.

19 To avoid unnecessarily duplicitous references to both Acts, IDHS shall refer to both the ADA and 

Rehabilitation Act claims as Plaintiff’s statutory claims. 

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To succeed on his statutory claims, Plaintiff must show that: (1) he is a “qualified individual 

with a disability;” (2) IDHS denied Plaintiff the “the benefits of the services, programs, or activities 

of a public entity;” and (3) Plaintiff was discriminated against “by reason of” his disability. Money, 

2020 WL 1820660 at *18. Defendants do not dispute that Plaintiff meets the first prong of this 

analysis – he is a qualified individual with a disability for purposes of the ADA. However, Plaintiff 

cannot show that he was denied the benefits of a public entity’s services or otherwise discriminated 

against by reason of his disability.

a. The benefit in question–the Division-funded CDS program–is 

currently unavailable to everyone.

Plaintiff alleges that he has been discriminated against because a program he was recently 

admitted to for Division funding, in which he wishes to participate, CDS, has been temporarily 

suspended. However, not being provided a non-existent service is not discrimination. The statutes

prohibit an individual from being denied the ability to participate in or benefit from a service, 

program, or activity of a public entity. 42 U.S.C. § 12132. The logical reading of this portion of 

the Act requires that the service, program, or entity actually exists. Here, it is undisputed that the

Division-funded CDS program is not currently active. No individuals are currently able to receive 

benefits through the program. IDHS is currently working on tools and guidance to assist providers 

and families in ensuring the program is able to restart with the use of proper safety protocols; 

however, for all intents and purposes, the Division-funded program simply does not exist at this 

time. The statutes do not require that IDHS provide access to a non-existent government program.

Plaintiff disagrees with IDHS’s decision to temporarily suspend the program, but this 

disagreement does not give Plaintiff the ability to demand that IDHS immediately reopen the CDS 

program. States are empowered to administer and run government programs, including ones that 

receive federal funding. Inherent in that authority is the ability to exercise discretion related to 

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programs and services. See Section I.B., infra. This encompasses decisions as to what services to 

provide and whether a program should be suspended or discontinued. See U.S. v. Loria, No. 

3:08CR233–2, 2010 WL 1779998, at *1 (W.D.N.C. April 30, 2010) (discussing how court did not 

have authority to order the Bureau of Prisons to make certain types of programs available). 

b. Plaintiff cannot establish any discrimination on the basis of his 

disability.

Plaintiff also cannot establish that IDHS’s decision to delay the reopening of the CDS 

program is based on his disability. To make such a showing, Plaintiff must demonstrate at least 

one of the following three things: (1) IDHS’s intentional action on the basis of the disability, 

(2) IDHS’s refusal to provide Plaintiff with a reasonable modification, or (3) a showing that 

IDHS’s rule disproportionally impacts disabled people.” Money, 2020 WL 1820660 at *18.

Plaintiff cannot establish any of these factors, and his statutory claims fail accordingly.

i. Plaintiff cannot establish intentional action on the basis of 

disability.

Plaintiff asserts that because the developmental disabilities of the clients serviced by the 

CDS programs were considered in developing IDHS’s reopening strategy, the decision to delay 

reopening is necessarily and impermissibly based on Plaintiff’s disability. ECF 7 at 8. This 

argument ignores the reality of this situation. The developmental disabilities of the CDS program’s 

participants were considered as IDHS developed the plan for reopening the CDS program. Because 

the entire program exists to provide services for the developmentally disabled community of 

Illinois, there is no way not to consider the participants’ disabilities when developing safe, quality 

programming for them. To ignore the participants’ disabilities would be to eviscerate the purpose 

of the program in the first place.

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Here, all of IDHS’s decisions have revolved around COVID-19 – specifically, IDHS’s 

legitimate concerns regarding the impact that COVID-19 may have on the CDS program 

participants. [Bleasdale Decl. ¶¶ 4-6; Stark Decl. ¶¶ 19-26] As discussed, COVID-19 is a highly 

contagious virus with no vaccine and no reliable or widely available treatment. Plaintiff disagrees 

with IDHS’s position related to the potentially heightened dangers that COVID-19 presents to 

individuals with intellectual and/or developmental disabilities, but that does not mean that IDHS

should not consider federal guidelines and recommendations from public health experts when 

determining how COVID-19 may impact the CDS program and its participants. This is especially 

evident in light of similar restrictions being implemented in other states, including New York, New 

Jersey, and others.

The interplay between COVID-19 and the statutes was addressed in the Money case which 

concerned a group of inmates’ requests for medical leave or furlough because of COVID-19. See 

Money, 2020 WL 1820660. There, the court recognized that the plaintiffs did not have a statutory

claim, as they were not discriminated against because of their disability. Id. at n. 14. The Court 

further noted that “[t]he fact that disabled persons may be more susceptible to contract or suffer 

serious consequences from COVID-19 is not disputed, but that disparate impact is not a 

consequence of “Defendant’s rule” or any action by Defendants." Id. (emphasis added). Similarly, 

IDHS has not made decisions based on Plaintiff’s disability; IDHS has made decisions based on 

the public health risks of COVID-19. As such, Plaintiff cannot show that he was discriminated 

against because of his disability. 

In making his arguments, Plaintiff focuses extensively on a letter from IDHS that discussed 

concerns with immediately reopening the CDS program. See ECF# 9-15. However, Plaintiff once 

again misrepresents the facts regarding this letter. Through that communication, IDHS’s General 

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Counsel highlighted the unique considerations that come into play related to providing programing 

for large numbers of individuals with intellectual and developmental disabilities given the current 

prevalence of COVID-19. Because the program at issue only serves individuals with disabilities, 

a second level of analysis is required to pinpoint the determinative factor guiding IDHS’s 

decisions. As discussed, the developmental disabilities of every client are considered in virtually 

every decision related to the CDS program. This alone does not mean that every decision IDHS

makes about the CDS program is because of the client(s) disability. As such, while IDHS

considered the developmental disabilities of its clientele when making its reopening decisions, the

decisions were made because of the public health risks of COVID-19, not because of its clients’ 

disabilities.

ii. Plaintiff’s requested “accommodations” are not reasonable.

Plaintiff could also support his statutory claims by showing IDHS refused to provide him 

with a reasonable accommodation. Money, 2020 WL 1820660 at *18. As previously noted, it is 

unclear whether Plaintiff is requesting that IDHS reopen the CDS program solely for him, or if he 

is requesting an immediate reopening of all CDS programs throughout the state. Regardless, the 

government is required only to provide accommodations that are “reasonable,” and neither of 

Plaintiff’s suggested accommodations is reasonable. 28 C.F.R. § 130(b)(7).

This Court has previously held that typically a public entity should strive to provide the 

accommodation that a plaintiff requests; however, the public entity is not obligated to do so when 

the requested accommodation is not reasonable. Novak v. Hall, 139 F. Supp. 3d 901, 914 (N.D. Ill. 

2015) (Pallmeyer, J.). “Whether a requested accommodation is reasonable or not is a highly factspecific inquiry and requires balancing the needs of the parties.” Oconomowoc Residential 

Programs v. City of Milwaukee, 300 F. 3d. 775, 784 (7th Cir. 2002) To determine if an 

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accommodation is reasonable, courts look to whether the requested accommodation is effective 

and proportional to the costs required to implement the accommodation. Id. at 784. An 

accommodation is unreasonable if the accommodation would “fundamentally alter the nature of 

the service, program, or activity.” Valencia v. City of Springfield, Illinois, 883 F.3d 959, 968 (7th 

Cir. 2018).

Here, Plaintiff is requesting that IDHS reopen the CDS program for him alone, that IDHS

reopen the entire CDS program statewide, or both. In any event, the request is unreasonable. As 

an initial matter, the Division-funded CDS program is not currently in operation. Consequently, 

either “accommodation” requested by Plaintiff would require IDHS to restart a program that has 

been suspended. On its face, the demand is unreasonable, as logic dictates that reinstating a 

program that is not currently in operation is a fundamental alteration of the nature of the program. 

See Valencia, 883 F.3d at 968. Even if one assumes that Plaintiff seeks a limited restart of the 

program only for him at the CWTC site, such a request is still unreasonable. Plaintiff asserts that 

his supervisors are ready and able to resume their positions at CWTC, and that there is 

consequently not a significant administrative burden associated with his request. [Transcript at 

17:17-22, 26:20-25 – 27:1-17]. However, while administrative and financial concerns are factors 

that the court considers when weighing whether an accommodation is reasonable, they are not the 

only considerations. Furthermore, as he has not received Division funding before, he will be 

attending the program as a new participant. As such, IDHS will need to work with his ISC agency 

to modify his Personal Plan to include support from CWTC in order for CWTC to be able to bill 

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for his attendance. In addition, CWTC will need to develop an Implementation Strategy and goals 

for his participation.20 [Stark Decl. ¶ 31]

In A.H. by Holzumeller, plaintiff requested that the Illinois High School Association lower 

the qualifying times required to participate in the state track and field finals. A.H. by Holzmueller 

v. Illinois High Sch. Ass’n, 263 F. Supp. 3d 705, 723 (N. D. Ill.) (Jul. 7, 2017). The court 

determined that while the financial or administrative burdens of altering the qualifying times would 

not be unreasonable, the request to amend the qualifying times was still unreasonable as it would 

alter the fundamental nature of the program. Id. at 726. Here, Plaintiff has requested that an entire, 

currently suspended, State program be reinstated for his individual use. Administrative concerns 

aside, the request to reinstate a program, even on an individual basis, is a fundamental alteration 

of the program and is thus, by default, not a reasonable accommodation.

If one views Plaintiff’s request as one to reopen the entire CDS program statewide, the 

analysis is even more straightforward, and Plaintiff’s requested accommodation is even more 

unreasonable. Plaintiff glosses over the substantial safety considerations that IDHS has considered 

in creating its plan to safely reopen the CDS programs starting on August 1, 2020. Instead, Plaintiff 

attempts to portray the process as a simple one that IDHS refuses to explore because of its alleged 

biases. Once again, Plaintiff ignores the realities of the situation. The CDS program serves 

approximately 21,000 individuals across the State. [Stark Decl. ¶ 2] Reinstating this program, 

especially in a responsible manner that adequately considers legitimate safety concerns of the 

clients and other personnel, is a substantial undertaking that requires significant planning. 

Plaintiff’s naive request to reopen the program in a manner of days is untenable and does not 

20 Both the Personal Plan and Implementation Strategy are required as part of the person-centered 

planning process for all individuals participating in Division-funded programs under the Home and 

Community-Based Services Medicaid Waiver. See https://www.IDHS.state.il.us/page.aspx?item=100040

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qualify as a reasonable accommodation under the statutes. Therefore, Plaintiff cannot show that 

he has been denied a “reasonable” accommodation.

iii. Plaintiff fails to address the accommodations that have been 

offered to him by IDHS.

In making his arguments, Plaintiff would lead this Court to believe that IDHS has made no 

effort to assist and accommodate him during this difficult time. Once again, this misrepresents the 

facts. As an agency dedicated to serving individuals with intellectual and developmental 

disabilities, IDHS’s Division of Developmental Disabilities is acutely aware of the uncertainty and 

distress that the COVID-19 pandemic has had on many of the individuals under its care, as it has 

had on the general population at large. While it does not believe it can safely reopen the CDS 

program right now, IDHS does realize that structure, socialization, and a sense of purpose are 

crucial to the health and happiness of its program participants. As such, IDHS is actively 

coordinating alternative programming for CDS participants who have expressed the desire to 

continue with programs during the pandemic. [Stark Decl. at ¶¶ 6, 19, 27]. Upon being made aware 

of Plaintiff’s distress, IDHS promptly offered this alternate programming to Mr. McDonald as 

well. See ECF 9-13.

As part of this alternate programming, Mr. McDonald could be provided one-on-one time 

with a Personal Support Worker who would provide him with personal support and engage him in 

activities. Mr. McDonald could also be provided with behavioral therapy and counseling services 

to assist him with any elevated anxiety levels he is experiencing. Inexplicably, rather than 

exploring the contours of IDHS’s offered alternate programming accommodation, this lawsuit was 

filed within days of the offer being made. Plaintiff has provided no reasons indicating why, 

particularly in the face of a deadly pandemic, this alternate programming is unsuitable. Rather, he 

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simply insists that the only appropriate course is an immediate and unsafe reopening of a statewide program. 

iv. Plaintiff has not established that a disparate impact exists.

Finally, Plaintiff is unable to show that IDHS’s decision has a disparate impact on 

individuals with intellectual and/or developmental disabilities. To establish a disparate impact,

Plaintiff must show “but-for” causation. A.H. by Holzmueller, 263 F. Supp. 3d at 722. In A.H. by 

Holzmueller, the plaintiff was a high school runner with cerebral palsy who sought to participate 

in the state finals. Id. at 710. Specifically, he requested that IHSA establish realistic qualifying 

times for para-ambulatory athletes to compete in the state finals and that IHSA establish a paraambulatory division in its annual 5K “Road Race” event. Id. In evaluating plaintiff’s claim, the 

court applied “but-for” causation, which requires a plaintiff to show that but-for their disability,

they would be able to participate in the program, service, or event at issue. Id. at 722. 

Here, Plaintiff cannot meet this burden. To establish but-for causation, Plaintiff would have 

to show that but for his disability he would be able to return to CWTC’s work training program

through the Division-funded CDS program. “[T]he ADA and the Rehabilitation Act are addressed 

to rules that hurt people with disabilities by reason of their handicap, rather than that hurt them 

solely by virtue of what they have in common with other people.” Wisconsin Comm. Serv., Inc. v. 

City of Milwaukee, 465 F.3d 737, 748 (7th Cir. 2006). Here, the comparable group that Plaintiff 

should be compared to is other CDS clients or even other individuals with developmental 

disabilities, not the population at large. Accordingly, Plaintiff’s argument fails, as but for 

Plaintiff’s disability he would not be eligible for participation in any CDS program, as 

developmental disability is a pre-requisite to program eligibility. [Stark Decl. at ¶ 3]. Further, 

evidence demonstrates that individuals with developmental disabilities are often more severely 

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impacted by COVID-19. [Stark Decl. at ¶¶ 12-13]. This does not amount to a disparate impact 

because of IDHS’s decisions or actions, rather it is based on the nature of COVID-19. As Plaintiff 

cannot show that IDHS discriminated against him because of his disability, that IDHS refused to 

provide a reasonable accommodation, or that IDHS’s actions or decisions have disparately 

impacted the disabled, Plaintiff’s statutory claims are is unlikely to succeed on the merits. 

2. Equal Protection

Plaintiff alleges that the decision to temporarily suspend the CDS Program, and by 

extension Plaintiff’s ability to have his participation at CWTC paid for by the IDHS, violates the 

Equal Protection Clause. ECF 7 at 12. As IDHS’s actions are rationally related to a legitimate 

government interest, namely the safe reopening of the CDS program during this global pandemic, 

Plaintiff is unlikely to succeed on this claim. 

The Equal Protection Clause was designed to ensure that similarly situated people are 

treated the same, but it “is not a license for courts to judge the wisdom, fairness, or logic of 

legislative choices.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Here, as recognized 

in the Motion, Plaintiff’s equal protection claim is subject to rational basis review, as mental 

disability is not a suspect class. See ECF 7 at 12; City of Cleburne, Tex. V. Cleburne Living Ctr.

(“Cleburne”), 473 U.S. 432, 442 (1985) (holding that mental disability is not a suspect class).

21

Under the rational basis standard, the courts are required to uphold the government’s actions unless 

there is no rational relationship between that action and a legitimate government purpose. St. Joan 

Antida High Sch. Inc., 919 F. 3d at 1010. “This standard of review is a paradigm of judicial 

21 At the June 25, 2020, hearing, Plaintiff insinuated that the State’s decision should be reviewed as if it 

related to race or gender – in other words, that strict scrutiny applies. [Transcript 12:13-20]. This assertion 

is incorrect. See St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003, 1008 (7th 

Cir. 2019) (explaining that strict scrutiny only applies when a suspect class or fundamental right is at 

issue).

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restraint,” and judicial inquiry ends as soon as a plausible reason for the action is found. F.C.C. v. 

Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993) (internal citations omitted); St. Joan Antida 

High Sch. Inc., 919 F.3d at 1011 (“We need only identify a legitimate end and ask whether the 

means – the classification – bears a rational relationship to the end.”). 

This incredibly deferential standard recognizes that courts “are required to accept a 

legislature’s generalizations even when there is an imperfect fit between means and ends. A 

classification does not fail rational-basis review because it is not made with mathematical nicety 

or because in practice it results in some inequality.” Srail v. Vill. of Lisle, Ill., 588 F.3d 940, 946-

7 (7th Cir. 2009) (quoting City of Chicago v. Shalala, 189 F.3d 598, 606 (7th Cir. 1999)). Under 

this standard, which gives a “strong presumption of validity” to IDHS’s decisions, IDHS is not 

required to justify its actions. Instead, the burden is on Plaintiff to negate every conceivable basis 

for the decision. Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047, 1053 (7th Cir. 2018) (internal 

citations omitted). Plaintiff cannot meet this burden and has not even attempted to do so.

IDHS has compelling reasons to cautiously approach reopening the CDS program using a 

comprehensive plan that considers the particular challenges associated with running statewide 

programs for approximately 21,000 individuals with intellectual and/or developmental disabilities.

[Stark Decl. at ¶¶ 2, 12-13, 20-25; Bleasdale Decl. ¶¶ 2-6]. Plaintiff may disagree with IDHS’s 

decision and dispute the validity of the reasoning behind that decision, but a disagreement as to 

whether a government decision is appropriate does not establish that there was no rational basis 

for the decision. Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 77 (2001) (“The fact that other means 

are better suited to the achievement of governmental ends . . . is of no moment under rational basis 

review.”) The Division’s actions are also clearly in line with other states who have similarly 

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suspended CDS services, which is further evidence of a clear rational basis. As such, there is no 

basis for judicial interference with IDHS’s decision-making process. 

Plaintiff relies on Cleburne to argue that IDHS’s decision does not survive a rational basis 

review. ECF 7 at 12. Plaintiff’s attempt to equate IDHS’s actions here with those of the City in 

Cleburne is not only wrong, but offensive. In Cleburne, the Supreme Court determined that a city 

law that required additional zoning requirements in order to build a home for individuals with 

developmental disabilities did not survive a rational basis analysis, as the irrational prejudice 

against such individuals was the only justification for the law. See Cleburne, 473 U.S. at 450. The 

irrational, prejudice-driven bias present in Cleburne makes the case highly distinguishable, and its

analysis is rarely applicable in other circumstances. Monarch Beverage Co., Inc. v. Cook, 861 F.3d 

678, 685 (7th Cir. 2017) (discussing how Cleburne is an “extraordinary rather than exemplary” 

rational-basis case). As such, the Seventh Circuit has “cautioned against overly-broad readings of 

[Cleburne]. Minerva Diary, Inc., 905 F.3d at 1057-8.

Cleburne stands for the proposition that:

If a law is challenged as a denial of equal protection, and all that the 

government can come up with in defense of the law is that the people who 

are hurt by it happen to be irrationally hated or irrationally feared by a 

majority of voters, it is difficult to argue that the law is rational.

Minerva Diary, Inc., 905 F.3d at 1058 quoting Milner v. Apfel, 148 F.3d 812, 817 (7th Cir. 1998). 

Plaintiff’s attempt to compare the motivations present in Cleburne to IDHS’s public health-based 

actions is unfounded and unreasonable. The Division of Developmental Disabilities works to 

provide community-based programs for individuals with intellectual and developmental 

disabilities. These programs are designed to provide enrichment, services and supports to these 

individuals in a safe environment. IDHS is not driven by irrational “fear” or “hatred” of individuals

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with intellectual and/or developmental disabilities, as demonstrated by the very existence of 

programs designed and run by dedicated civil servants to benefit these individuals.

IDHS has made decisions as to how to safely reopen its programs during a global 

pandemic; decisions based on their expertise, taking into consideration the specific needs of the 

program participants, and guidance from the CDC and IDPH and IDHS. At this time, IDHS has 

determined that the Division’s CDS programs should be temporarily suspended due to public 

health concerns, and not reopened until it can be done in as safe a manner as practicable under 

these extraordinary circumstances. Given the undeniable public health risks associated with 

COVID-19, and especially the risks associated with congregate settings, in which the majority of 

the Division’s program participants live, Plaintiff cannot show that this decision is unrelated to a 

legitimate government purpose. As such, Plaintiff cannot succeed on his Equal Protection claim. 

II. Plaintiff Has Not Shown That He Will Be Subjected to Irreparable Harm Absent 

Judicial Intervention.

Plaintiff also fails to establish that he will suffer irreparable harm if the Court denies his 

request for an injunction. Irreparable harm is “harm that cannot be prevented or fully rectified by 

the final judgment after trial.” Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th 

Cir. 1984). “[I]f the only injury from the defendant’s alleged wrongdoing is reparable by relief 

offered by a final judgment should the plaintiff prevail, the plaintiff must wait.” BRK Brands, Inc. 

v. Nest Labs, Inc., 28 F. Supp. 3d 765, 769 (N.D. Ill. 2014). This is exactly such a case. Plaintiff’s 

alleged harm is the mental and emotional distress he allegedly suffered as a result of not being able 

to participate in the work training program offered at CWTC. [ECF 1 at ¶¶ 47-48]. However, as 

discussed above, Plaintiff is and has been free to return to the CWTC work training program under 

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a private-pay agreement.22 Plaintiff participated in CWTC’s work training program for roughly 20 

years under just such an agreement and is therefore well aware of the availability of this option, as 

he was not awarded funding under the IDHS CDS program until March 26, 2020, after the CDS 

program had been suspended. [Stark Decl. ¶1, 6] Returning under such an agreement would cost 

Plaintiff approximately $1,300 for the month of July,23 until IDHS moves forward with its planned 

“soft reopening” scheduled for August 1. As such, if this Court were to eventually find that IDHS

violated Plaintiff’s rights in not fully reopening the CDS program until September 1, 2020, 

Plaintiff could be made whole at that time via an award of money damages to compensate him for 

the amount paid to return to the CWTC program prior to the reopening of the Division-funded 

CDS program. Thus, Plaintiff, if successful, has a remedy at law, has not shown irreparable harm, 

and his motion should be denied for this reason as well.

III. The Balance of Interests Weighs Heavily in Favor of the State.

Under the “balance of harms” portion of the analysis, Plaintiff must establish that “the harm 

[he] would suffer without the injunction is greater than the harm that preliminary relief would 

inflict on the defendants.” Mich. v. U.S. Army Corps of Eng’g, 667 F.3d 765, 769 (7th Cir. 2011). 

Because a movant need not establish that it is more likely than not that they will succeed on the 

merits to obtain injunctive relief, a movant “must compensate for the lesser likelihood of prevailing 

by showing the balance of harms tips decidedly in favor of the movant.” Boucher, 134 F.3d at 826 

22 At the hearing, the Court expressed concern that if Plaintiff can go back to work under a private pay 

arrangement, then the CDS program could also be reopened. But there is a vast difference between 

Plaintiff and his caregivers making a decision to allow him back to work under private pay, and making 

their own judgments regarding the associated health risks, and requiring the opening of a state sponsored 

program that would send vulnerable individuals into a potentially dangerous setting, especially when the 

State’s public health experts have determined that reopening the program at this time is ill advised.

23 This figure is based on the $12.79 per hour that IDHS pays for CDS participants to participate in 

CWTC’s program (Stark Decl. ¶ 17), a 41⁄2 hour day (see ECF 9-15 at 2, stating that participants should 

arrive no earlier than 7:45 a.m. and depart by 12:15 p.m.), for 22 working days.

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n. 5 (emphasis in original). The court also should consider whether a preliminary injunction would 

cause harm to the public interest. Platinum Home Mort. Corp. v. Platinum Fin. Group, Inc., 149 

F.3d 722, 726 (7th Cir. 1998).

When this Court balances the hardships where “the Government is the opposing party, the 

final two factors in the temporary restraining order analysis—the balance of the equities and the 

public interest—merge.” Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & 

Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018); Trump v. Int'l Refugee Assistance, 138 

U.S. 353 (2017) (“As the district court did, we consider the balance of the equities and the public 

interest factors together.”); see also Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 

(D.C. Cir. 2016) (“The government’s interest is the public interest.”) (emphasis in original). 

The federal courts recognize that public health is a significant public interest. Grand River 

Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005). It is with that significant 

public health interest in mind that this Court should balance the public’s interest in avoiding being 

exposed to a virus, where many members of that public are at higher than average risk for 

contracting COVID-19 and/or suffering complications therefrom, with Plaintiff’s interest in being 

provided with an IDHS subsidy, via the CDS program, to return to his CWTC work training 

program.

The Court can be confident that the sweeping injunction requested by Plaintiff could 

unleash tragic consequences across Illinois. Plaintiff does not and cannot deny the public health 

crisis resulting from the COVID-19 pandemic. As the Seventh Circuit recognized earlier this 

month, the virus has infected millions of people all over the world and claimed the lives of 

hundreds of thousands. Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 

3249062, at *1 (7th Cir. June 16, 2020). As of today, more than 140,000 people in Illinois have 

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been infected, and almost 7,000 of those have died. Despite these stark facts, Plaintiff is asking 

that the CDS program be broadly and universally re-opened approximately two months earlier than 

is safe, solely for his benefit. If that were to happen, there is the potential for thousands of people 

(including other recipients of CDS services, staff, and family members) to contract COVID-19, 

with potentially fatal effects. The realities of this scenario have already played out, as the first 

known COVID-19 transmission involving the Division’s programs occurred as a result of 

transportation of individuals to a CDS program by driver infected with COVID-19. The virus 

spread to two ICF/DD residences, one CILA residence and one individual’s home, ultimately 

resulting in two deaths. [Stark Decl. ¶ 12] Any of the alleged harms Plaintiff may suffer due to the 

CDS program not fully reopening until September 1, 2020 (a maximum of two months, with at 

least some providers likely opening one month from now) are relatively slight compared to the 

devastation that could result if IDHS were compelled to reopen the program immediately. 

Finally, Plaintiff’s proposed relief is not in the public interest because it would drastically 

interfere with the State’s ability to manage its own programs. Rowe v. Finnan, No. 11-CV-524, 

2013 WL 74609, at *2 (S.D. Ind. Jan. 4, 2013). As discussed above, the Court should “afford 

appropriate deference and flexibility to state officials trying to manage a volatile environment.” 

Id. (quoting Sandin v. Conner, 515 U.S. 472, 483 (1995)). Thus, an injunction issued against state

officials “dealing with the day-to-day operation” of State programs “may cause substantial harm 

to both public and private interests.” Id. The injunction sought here, which would strip IDHS of 

the most basic control over its own programs—the power to determine when it may safely resume 

programming—would cause substantial harm to the public interest. Plaintiff’s request that he and 

the Court substitute his judgment for IDHS’s in determining when IDHS may safely resume its 

programs, is not responsible or in keeping with the public interest.

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CONCLUSION

Plaintiff is not likely to succeed on the merits of his claims, and he has not shown that he 

will be subject to irreparable harm absent court intervention. Moreover, the public interest will 

suffer immensely if IDHS is compelled to reopen the CDS program before being able to ensure 

that all program participants will be protected to the fullest extent possible from infection by 

COVID-19. The Court should deny Plaintiff’s motion for a temporary restraining order and 

preliminary injunction.

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Dated: June 29, 2020 Respectfully submitted,

KWAME RAOUL

Attorney General of Illinois

/s/ Amanda L. Kozar

Amanda L. Kozar

Mary A. Johnston

Sarah Newman

Michael Dierkes

Office of the Illinois Attorney General

100 West Randolph Street

Chicago, Illinois 60601

Counsel for JB Pritzker and Grace B. Hou

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CERTIFICATE OF SERVICE

I certify that on June 29, 2020, I caused a copy of the foregoing State Defendants’ Memorandum 

in Opposition to Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction 

to be filed electronically on CM/ECF, which will cause a notice of filing to be sent to all counsel 

of record who have entered appearances.

/s/ Amanda L. Kozar

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