UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ENZO COSTA, et al.,

Plaintiffs,

v. Civil Action No. 19-3185 (RDM)

BARBARA J. BAZRON, et al.,

Defendants.

MEMORANDUM OPINION

Before the Court are the parties’ respective positions on extending the temporary

restraining order (“TRO”), Dkt. 60, which is set to expire at 11:59 pm tonight. Plaintiffs propose

that the Court extend the TRO until May 25, 2020 and also request that the Court expand the

TRO in three respects. Dkt. 74 at 1. Defendants oppose extending or expanding the TRO. Id. at

6. For the reasons explained below, the Court finds that there is good cause to extend it until

May 22, 2020 and to expand it in two respects. The Court further encourages—but does not at

this time order—Defendants to implement amici’s other recommendations to the extent possible

and consistent with the health and well-being of the patients (and staff) at Saint Elizabeths

Hospital.

I. BACKGROUND

The Court has recounted much of the relevant factual background and procedural history

at length in its earlier memorandum opinion, see Costa v. Bazron,

,

at *2–14 (D.D.C. Apr. 25, 2020) (“Costa I”), and will only summarize and add to that

background as necessary here. The last time this case was before the Court, Plaintiffs had moved for a TRO seeking

immediate redress with respect to a number of allegedly unsafe and unconstitutional conditions

at Saint Elizabeths Hospital resulting from the rapid spread of COVID-19 among the patients and

staff at the hospital. Dkt. 39. In the week that followed, the Court held a telephonic hearing to

address the Plaintiffs’ motion; requested that Plaintiffs identify the actions that, in their view,

needed to be redressed on the most pressing basis; ordered that the parties meet and confer, along

with the parties’ experts, regarding those high priority concerns; and held a second telephonic

hearing to address the high priority concerns as to which the parties disagreed. See Costa v.

Bazron,

, at *2–14.

Upon consideration of the parties respective positions, the briefs, and all of the relevant

evidence before it at that time, the Court granted Plaintiffs’ motion for a TRO in part and

deferred ruling on the motion in part, Dkt. 59, and entered a TRO, Dkt. 60. The TRO, which

remains in effect at this hour, requires the hospital (1) to isolate individuals who have been

exposed to COVID-19 in individual quarantine spaces to the extent medically and psychiatrically

practicable; (2) to conduct clinical evaluations prior to releasing patients suspected of having

COVID-19 from isolation, and, if higher clinical suspicion exists, to administer the CDC-

recommended, two-test release protocol; and (3) to provide the Court and Plaintiffs’ counsel with

periodic reports detailing their efforts to comply with the Order.

at 1–2. The TRO is set to

expire at 11:59 pm tonight unless extended for good cause. Id. at 2.

Three days after the Court issued the TRO, it held a status conference and directed the

parties to meet and confer as to the appointment of a third party (or parties) to conduct the fact-

finding necessary for further proceedings. Minute Entry (Apr. 28, 2020). The parties identified

three potential candidates: Dr. Ronald Waldman, an infectious disease expert with vast

2 experience on advising public health entities; Joan Hebden, a specialist in infection prevention

and control; and Dr. Patrick Canavan, a licensed psychologist, and former CEO of Saint

Elizabeths, who could advise on the mental health treatment aspects of Plaintiffs’ claims. Dkt.

65 at 2. Because the parties had some disagreement about the proper scope of the fact-finding

inquiry, the Court held another telephonic status conference to address the disputed issues.

Minute Entry (May 1, 2020). After hearing from the parties, the Court appointed Dr. Ronald

Waldman, Joan Hebden, and Dr. Patrick Canavan as amici curiae to conduct an investigation

and to provide information to the Court relating to a list of questions relevant to Plaintiffs’

claims. Dkt. 68.

On May 7, 2020, the Court held a further status conference at which the Court-appointed

amici presented their preliminary findings and recommendations. Dkt. 77. That same day, the

Court extended the TRO until May 11, 2020, at 11:59 pm, finding that good cause existed

because, among other things, amici’s written report would not be finalized until May 11, 2020,

and the Court would “need an opportunity to determine whether the TRO should be extended

and/or modified in light of that report.” Minute Order (May 7, 2020). The Court was further

convinced, based on the preliminary report, that good cause existed for extending the TRO until

May 11, 2020. The next day, the parties filed a joint status report setting forth their respective

positions on whether the TRO should be further extended or expanded. Dkt. 74.

Amici have now filed their reports with the Court summarizing their findings and

recommendations. Dkt. 78; Dkt. 81. Those reports are remarkably thorough, balanced, and

considered, particularly given the very short timeframe amici had to investigate and to report on

the fast-evolving circumstances at Saint Elizabeths. Amici, moreover, were uniformly impressed

3 with the cooperation that the received from the staff and management at the hospital. The Court

extends its gratitude to amici and the hospital’s staff and management for their mutual efforts.

II. ANALYSIS

A TRO expires at the earlier of 14 days after the time of its entry or the date the court

sets, “unless before that time, the court, for good cause, extends [the TRO] for a like period or

the adverse party consents to a longer extension.” Fed. R. Civ. P. 65(b)(2). Although there is

little case law on what constitutes “good cause,” “a showing that the grounds for originally

granting the [TRO] continue to exist” is sufficient, Wright & Miller, 11A Fed. Prac. & Proc. Civ.

§ 2953 (3d ed. Apr. 2020 Update), and courts have also found “good cause” where more time is

needed fully to consider the parties’ arguments and motions or “where the moving party need[s]

additional time to prepare and present its preliminary injunction,” SEC v. Arisebank, No. 18-cv-

186,

, at *3 (N.D. Tex. Mar. 9, 2018) (collecting cases).

Here, Plaintiffs request that the TRO be extended until the Court “renders a decision on

[their] forthcoming motion for a preliminary injunction.” Dkt. 74 at 2. Although Plaintiffs

acknowledge that the TRO has “helped slow the spread of the virus” at Saint Elizabeths, id. at 3,

they also stress that the “number of [COVID-19 positive] patients and staff . . . and the number

of fatalities has continued to climb,” id. at 2. They note, for example, that, as of May 6, 2020,

“the number of COVID-19 positive individuals has doubled from 36 to 72 . . ., and the number of

patients who have died has more than tripled, from 4 to 13.” Id. at 2. Since filing the joint status

report, moreover, the Court has learned that an additional patient has died, bringing the death toll

among a relatively small population to 14.

Plaintiffs also ask that the TRO be expanded in three ways. They contend that, although

the hospital’s “practices have improved since the Court entered the TRO,” Defendants are still

4 “failing to meet professional standards” in at least three key respects identified by the amici at

the May 7, 2020, status conference. Id. at 5. First, although the hospital has tested all patients

and staff, it has not conducted a “point prevalence testing” survey, as recommended by the CDC.

Id. Second, the hospital has not fully restricted cross-unit staff movement—more specifically,

Plaintiffs contend that staff should not mix between COVID-19 positive and COVID-19 negative

units. Id. Third, Plaintiffs ask the Court to order that the District of Columbia Department of

Health assign a professional epidemiologist to assist the hospital with data management. Id.

Defendants oppose any extension or expansion of the TRO. In their view, further emergency

relief is not warranted because “the Hospital’s practices and protocols on infection control have

been and continue to be in line with sound professional judgment.” Id. at 6.

Having considered the parties’ respective positions, the final reports submitted by amici,

Dkt. 81; Dkt. 78, and the entirety of the record, the Court finds that good cause exists to extend

the TRO and to expand it in certain limited respects. As a starting point, the Court finds that

good cause exists to extend the TRO because the parties need time to brief, and the Court needs

time to consider, the forthcoming motion for a preliminary injunction. See Arisebank,

, at *3. But even setting aside that reason, the conditions at the hospital

warrant the extension of the TRO. The Court recognizes, to be sure, that the hospital has taken

an array of measures to combat the spread of infection and that the pandemic presents a

formidable challenge that is dynamic and ongoing. See Dkt. 81 (observing that the hospital “has

made a remarkable effort to cohort patients who have known infection with COVID-19”). But

the infection control measures currently at issue were adopted shortly after the Court issued the

TRO, and the good faith and conscientious compliance with the Court’s order does not

demonstrate that extension of the order is unwarranted. The Court previously found that the

5 hospital’s pre-TRO efforts fell short in the specified respects, see Dkt. 59, and no new evidence

suggests that the Court’s finding was incorrect. To the contrary, amici have endorsed the

measures specified in the existing TRO and have affirmed that those measures are required as a

matter of sound professional judgment.

Moreover, as Plaintiffs observe, the public health crisis at the hospital is ongoing—“[a]s

recently as May 9, 2020, . . . tests from six patients not house on COVID [positive] units and

one staff member were reported . . . positive for viral RNA.” Dkt. 81 at 2. As the Court

previously observed, this crisis presents an imminent threat to Plaintiffs and, since the Court

issued the TRO, the spread of the virus has continued to have tragic consequences for patients at

the hospital. The Court has never doubted, and does not currently doubt, that the staff and

management at the hospital are committed to protecting the health and well-being of their

patients. Nor does the Court doubt that the task of managing and mitigating the spread of the

disease at a facility like Saint Elizabeths presents extraordinary challenges. But, despite that

commitment, Defendants’ efforts, and the fact that the hospitals’ staff and management have

done many things very well, amici report that the hospital is not adhering to CDC guidelines in at

least two key respects.

First, although the hospital has embarked on a point prevalence survey (“PPS”) of all

patients, it has not included staff in its PPS as recommended for facilities with suspected or

confirmed cases. Dkt. 81-1 at 6. The CDC guidance identified by amici explains the importance

of including staff in the PPS. “[W]hen COVID-19 cases are identified in a [long-term care

facility], there are often [Health Care Practitioners (‘HCP’)] with asymptomatic [COVID-19]

infection present as well,” and, as a result, “HCP likely contribute to [the] introduction and

further spread” of COVID-19. CDC, Testing for Coronavirus (COVID-19) in Nursing Homes

6 (Apr. 30, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-

testing.html. As a result, the CDC recommends that “PPS of HCP should be considered in

facilities with suspected or confirmed cases of COVID-19” as part of a test-based prevention

strategy.

Consistent with the CDC’s experience and given the hospital’s extensive efforts at

cohorting, amici posit that staff is the most likely source of continued infection spread at Saint

Elizabeths. See Dkt. 77 at 10–12. Amici therefore stress that it was important to “at least be in

conformance with [CDC] guidelines, if not even going beyond them on the conservative side” as

the crisis at the hospital is “not just starting now,” but rather has “been allowed to develop to

where it is at this point. Id. at 12. Thus, Amici recommend that the hospital conduct a PPS that

includes both patients and staff and that the hospital re-test, en masse, at regular intervals. See

Dkt. 18-1 at 6.

Second, amici emphasize that infection control requires reducing “traffic within the

hospital”—specifically, reducing staff movement between COVID positive and COVID negative

units. Dkt. 77 at 10–11. Amici were “emphatic in saying that while in the past this has not been

respected, there should be no mixing of staff between these units. Id. Consistent with the

relevant CDC guidance, Amici recommend that staff “be assigned daily to only one unit” and if

staff work overtime, that it be “on the same unit they have been working throughout the day.”

Dkt. 81-1 at 5; see also Dkt. 54-1 at 10 (CDC recommending that facilities assign dedicated HCP

to COVID positive or suspected units, meaning “HCP are assigned to care only for these patients

during their shift”).

Because Defendants agree that the hospital should follow CDC recommendations, see,

e.g., Dkt. 54-2, and because amici have underscored the reasons why it is important for the

facility to abide by these recommendations, the Court concludes that the hospital’s unexplained

7 failure to abide by the CDC guidance in this respect is not based on the exercise of professional

judgment. For this reason, and in light of the Court’s previously analysis, Costa I,

, at *27–29 (explaining that Plaintiffs have established irreparable harm, and

that the balance of hardships and public interest favor injunctive relief), the Court finds that good

cause exists to expand the scope of the TRO to require the hospital to abide by these two

recommendations.

In contrast to those two measures, the Court is unpersuaded that, at least on the present

record, Defendants’ failure to assign an epidemiologist to the facility warrants emergency relief.

At the May 7, 2020, status conference, amici reported “that it would be a good idea for the

Department of Health to assign an epidemiologist to the facility” to help with data management

and that the District is apparently considering that recommendation. Dkt. 77 at 16. The final

written report, likewise, recommends that the Court order the District “to assign a dedicated

individual with appropriate epidemiological skills to oversee and be responsible for the collation

and analysis of all testing data, and all data pertaining to infection prevention and control policies

and procedures.” Dkt. 81 at 9. On the present record, what is not clear to the Court, however, is

whether failing to do so would constitute a “substantial departure” from professional judgement

or whether it is merely a departure from a preferred or optimal response. Like amici, the Court

urges Defendants to take this measure, but the Court is unconvinced that Defendants’ failure to

do so constitutes a violation of Plaintiffs’ constitutional rights. Similarly, although not yet

addressed in the parties’ briefs, the Court also urges Defendants immediately to implement

amici’s other, significant recommendations to the extent consistent with patient health and well-

being.

8 Having resolved issues of substance, the last issue is duration. It is well-settled that 28

days is the outer limit for the time that a TRO can remain in place without consent of the

enjoined party, regardless of whether the TRO was issued with or without notice. See H-D

Michigan, LLC v. Hellenic Duty Free Shops S.A.,

(7th Cir. 2012); see also

Sampson v. Murray,

(1974) (agreeing with a lower court’s conclusion that “a

temporary restraining order continued beyond the time permissible under Rule 65 must be

treated as a preliminary injunction, and must conform to the standards applicable to preliminary

injunctions”). Applying that limit here, and because Defendants do not consent to any further

extension, the TRO cannot be extended beyond May 22, 2020, at 11:59 pm.

CONCLUSION

For the reasons explained above, the Court will extend the TRO until May 22, 2020 at 11:59

pm and will expand the TRO in the limited respects discussed above.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: May 11, 2020

9