Parker v. Wolf

• Decision Date: 11 December 2020
• Docket Number: 20-cv-1601
• Parties: Chad PARKER, Rebecca Kenwick-Parker, Mark Redman, and Donna Redman, Plaintiffs, v. Tom WOLF, in his official capacity as Governor for the State of Pennsylvania, Josh Shapiro, in his official capacity as Attorney General of the State of Pennsylvania, and Dr. Rachel Levine, in her official capacity as Secretary of Health, Pennsylvania Department of Health, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

506 F.Supp.3d 271

Chad PARKER, Rebecca Kenwick-Parker, Mark Redman, and Donna Redman, Plaintiffs,

v.Tom WOLF, in his official capacity as Governor for the State of Pennsylvania, Josh Shapiro, in his official capacity as Attorney General of the State of Pennsylvania, and Dr. Rachel Levine, in her official capacity as Secretary of Health, Pennsylvania Department of Health, Defendants.

20-cv-1601

United States District Court, M.D. Pennsylvania.

Filed December 11, 2020

Andrea L. Shaw, Law Office of Andrew H. Shaw, PC, Carlisle, PA, Robert J. Muise, Pro Hac Vice, American Freedom Law Center, Ann Arbor, MI, for Plaintiffs.

Karen Mascio Romano, Keli M. Neary, Nicole J. Boland, Pennsylvania Office of Attorney General, Harrisburg, PA, for Defendants.

MEMORANDUM AND ORDER

John E. Jones III, Chief Judge

Presently pending before the Court is a Motion for Preliminary Injunction, (the "Motion"), filed by Plaintiffs Chad Parker, Rebecca Kenwick-Parker (together, the "Parker Plaintiffs" or the "Parkers"), Mark Redman, and Donna Redman (together, the "Redman Plaintiffs" or the "Redmans") (collectively, "Plaintiffs"). (Doc. 17). Defendants are Tom Wolf, Governor of Pennsylvania; Josh Shapiro, Pennsylvania's Attorney General; and Dr. Rachel Levine, Pennsylvania's Secretary of Health (collectively, "Defendants"). The Motion has been fully briefed. (Docs. 18, 23, 24). We also convened a hearing on the Motion on November 24, 2020.¹ Thus, the matter is ripe for our review. For the reasons that follow, the Motion shall be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This dispute arises amid the ongoing COVID-19 pandemic, a crisis which, as of the date of this opinion, has infected 463,175 Pennsylvanians and killed 12,066.²

On March 6, 2020, as the virus began infiltrating American communities in earnest, Governor Wolf declared a state of emergency. (Doc. 18 at 9). The Governor has subsequently extended the life of his emergency powers twice, most recently on August 31. (Id. ). Two executive initiatives that, at least in part, emanate from this emergency declaration are challenged here: the Pennsylvania Department of Health's ("DOH") deployment of "contact tracing" (the "Contact Tracing Program") and an order generally requiring all individuals to wear face coverings in public, subject to certain limitations and exceptions (the "Mask Mandate"). The motion sub judice asks us to enjoin Defendants’ enforcement of the Contact Tracing Program and the Mask Mandate.

A. The Contact Tracing Program

"Contact tracing" is, according to the DOH, the "process of identifying, notifying, and monitoring anyone who came in close contact with an individual who tested positive for COVID-19 while they were infectious." (Doc. 18 at 10–11). The DOH identifies "patients who are classified as being a confirmed or probable case of COVID-19." (Id. at 11) (emphasis omitted). These patients are referred to as "cases." (Id. ). DOH receives these positive or probable³ case identifications from labs across the Commonwealth. (Tr. 33:16–18). "Within 24 hours of receiving the positive result, trained public health staff conduct an interview with the case to obtain a list of close contacts they had while infectious." (Doc. 18 at 11).⁴ During the interview, the public health staff "attempt to obtain as much information as possible on the contacts (address, phone, email, etc.) and then share the contact information with the designated contact tracers." (Id. ) (emphasis omitted). The DOH, with permission of the individual, "enroll[s]" these close contacts in what is called the "Sara Alert system," which is a "symptom tracker tool." (Tr. 18:14–19:4). Sara Alert works in conjunction with "NEDSS," the Commonwealth's "disease surveillance system," which allows the contact tracers to "track, monitor, isolate and test symptomatic contacts and is further enhanced by the use of technology applications." (Doc. 18 at 13). This "web-based monitoring" enables contact tracers to "send daily emails, texts and/or phone calls to cases and identifies close contacts throughout their isolation/quarantine monitoring period." (Id. ).

After the DOH obtains the list of "close contacts" the individual had while he or she was likely infectious, a letter, signed by DOH Secretary Levine, is mailed to each "close contact." The letter "direct[s]" the recipient to "self-quarantine in [their] home." (Doc. 18-3 at 16). The letter instructs that "if your exposure to the person with COVID-19 is ongoing, you must self-quarantine in your home for 14 days after the person with COVID-19 is released from isolation. If you do not live in the same household as the person with COVID-19, you must remain in quarantine in your home for 14 days from the date of last contact with the person with COVID-19." (Id. ). Because a "negative test during the quarantine period will only show your infection status at the time of the test," and "[a] person can develop the virus and become infectious between 2 and 14 days after exposure," the recipient of the letter is directed to "quarantine for the entire 14 days even if you have had a negative test during this time." (Id. ). The letter, however, permits recipients who are health care workers and do not have symptoms to leave their homes, provided they remain asymptomatic, wear a mask, and practice social distancing. (Id. at 17).

The letter further "direct[s]" the recipient while in quarantine to take his or her temperature twice daily, monitor for other symptoms of COVID-19, immediately report any symptoms requiring medical attention to the DOH, avoid travel, "[m]aintain social distancing of at least 6 feet from family members," practice certain hygienic practices such as thorough hand-washing, and "[c]ooperate with the monitoring and other contacts of the [DOH] or its representatives." (Id. ).

The letter concludes by directing the recipient to "immediately adhere to this quarantine directive and all disease control measures included in it," and that upon failure to cooperate, "the Secretary of Health may petition a court to have you confined to an appropriate place chosen by the [DOH] to make certain that you are not able to infect the public, and to make certain that you receive proper care." (Id. at 18). Additionally, "[l]aw enforcement may be called upon, to the extent necessary, to ensure [the recipient's] compliance with this directive." (Id. ). The DOH has not petitioned a court to forcibly quarantine or isolate any individual during the current pandemic. (Tr. 17:14–23).

As part of the DOH's efforts to bolster the Contact Tracing Program, restaurants are "encouraged" to "utilize reservations for dining on premises to maintain records of all appointments, including contact information for all customers," while salons and barbershops are required to conduct business by appointment only. (Doc. 18 at 14). Schools throughout the Commonwealth are also required to "[t]ake measures that allow for exposed individuals to be more easily traced," such as using assigned seating, taking attendance, tracking all individuals who enter the classroom or school building (and keeping records of where, why, and who they visited in the building), and using sign-in sheets for all in-person staff meetings. (Id. ). The Commonwealth has also launched a "contact tracing app" called COVID Alert PA, which Pennsylvanians can voluntarily download to their cell phones. (Tr. 19:21–20:11).⁵

According to Plaintiffs, the DOH has received approval to spend millions of dollars to operate this Contact Tracing Program, has hired (or plans to hire) thousands of contact tracers, and has plans to set up a "hub and spoke" COVID-19 testing system that will enable widespread rapid testing throughout the Commonwealth. (Doc. 18 at 13–14).

B. The Mask Mandate

On July 1, 2020, Secretary Levine issued an order requiring all Pennsylvanians to wear a "face covering" when in public. (Id. at 15). This first order coincided with the "opening up" of the Commonwealth following three months of business closures and other stringent mitigation efforts promulgated at the onset of the pandemic. (Tr. 4:19–5:5; 35:22–23). On November 17, 2020, Secretary Levine issued an updated order, which is currently the operative Mask Mandate challenged in this litigation. (Doc. 29-1).

Secretary Levine issued the updated Mask Mandate because "[a]fter a brief respite in the summer months, case counts and the number of hospitalizations have been rising throughout the Commonwealth, surrounding states, and the world." (Id. at 2). In fact, Pennsylvania and the nation had been "seeing the highest number of reported cases since the pandemic was declared in January." (Id. ). Secretary Levine explained that "social distancing, mask wearing, isolation and quarantine are the first line of defense against the disease's spread" and that "[e]xperience demonstrates that when used in public settings, face coverings reduce the spread of COVID-19 in the Commonwealth." (Id. at 3). Secretary Levine also cited CDC guidance that "universal face coverings, even when not clinical-level masks, have been an effective mitigation strategy to prevent and control the spread of disease." (Id. ).

The Mask Mandate defines a "face covering" as the "covering of the nose and mouth with material that is secured to the head with ties, straps, or loops over the ears or is wrapped around the lower face." (Id. at 4). A "variety of synthetic or natural fabrics" may be used, including "improvised [masks] [made] from household items." (Id. ). While "procedural and surgical masks intended for health care providers and first responders, such as N95 respirators, meet those requirements, those specialized masks should be reserved for appropriate occupational and health care personnel." (Id. ).

The Mask Mandate compels "every individual, age two and older" to wear a "face covering" when they are: 1) indoors or in an enclosed space (including a gym or fitness center), where another person from...