Let Them Play MN v. Walz

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Let Them Play MN; Jane Doe 1, both      File No. 21-cv-79 (ECT/DTS)       
individually and as parent and guardian of                                
Jane Doe 2 and John Moe 3, minors; John                                   
Moe 4, as parent and guardian of John Moe                                 
5, a minor; Jane Doe 6; Jane Doe 7, as                                    
parent and legal guardian of John Moe 8 and                               
Jane Doe 9, minors,                                                       

     Plaintiffs,                                                     
                                    OPINION AND ORDER                
v.                                                                        

Governor Tim Walz, in his official capacity;                              
Attorney General Keith Ellison, in his                                    
official capacity; Commissioner Jan                                       
Malcolm, in her official capacity;                                        
Commissioner Tarek Tomes, in his official                                 
capacity as designated coordinator of youth                               
sports for the Administration of Governor                                 
Tim Walz; Minnesota Department of Health,                                 

     Defendants.                                                     
________________________________________________________________________  
Samuel W. Diehl and Ryan Wilson, CrossCastle, P.A., Minneapolis, MN, for Plaintiffs. 

Cicely R. Miltich and Elizabeth C. Kramer, Office of the Minnesota Attorney General, St. 
Paul, MN, for Defendants.                                                 


This case concerns the state of Minnesota’s decision to require youth athletes to 
wear face coverings while participating in organized sports activities and to limit spectators 
at organized youth sports events, both in an effort to limit the spread of COVID-19.  
Plaintiffs  are  Let  Them  Play  MN—a  non-profit  corporation  that  opposes  these 
restrictions—and several anonymous youth athletes, parents, and coaches.  In this lawsuit, 
Plaintiffs claim that the face-covering requirement and spectator limits violate their rights 
under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, 
as well as similar guarantees under the Minnesota constitution.  Plaintiffs have moved for 

a  preliminary  injunction  that  would  bar  Minnesota’s  officials  from  enforcing  the 
challenged restrictions and for leave to seek expedited discovery.        
The motion will be denied in all respects.  Plaintiffs have not shown that they are 
likely to succeed on the merits of their constitutional claims, that they would suffer 
irreparable harm in the absence of an injunction, that the equities and public interest weigh 

in their favor, or that there is any need for expedited discovery.  What Plaintiffs have shown 
are sincere, reasonable, and good-faith objections to Minnesota’s policies.  Plaintiffs’ 
primary concern is that, when worn by athletes engaged in high-intensity contact sports 
such as ice hockey and basketball, face coverings heighten the risk of significant injuries, 
and the evidence Plaintiffs have submitted to support the validity of this concern is credible.  

Regardless, for many decades now, our federal Constitution has been understood to give 
the political branches great latitude to resolve difficult questions concerning social and 
economic policy.  These are just the type of decisions Plaintiffs challenge here: the 
challenged policies balance the interests of limiting the spread of COVID-19 and its 
sometimes-lethal consequences with the unquestionably positive benefits of permitting 

Minnesotans to participate in organized sports.  Even if Plaintiffs had the better argument 
as a matter of policy, the law is clear that the appropriate audience for their argument and 
objections are Minnesota’s political branches, not a federal court.       
                           I                                         
                           A                                         
As most are now aware, COVID-19 is a disease caused by a virus called SARS-

CoV-2.  Danila Decl. ¶ 5 [ECF No. 28].  The disease has proven deadly; as of February 2, 
2021, Minnesota had seen at least 462,528 confirmed cases of COVID-19 and 6,202 deaths.  
Id. ¶ 6.  The virus is “primarily spread by respiratory droplets carried through the air and 
released when people talk, breathe or exhale, cough, or sneeze.”  Id. ¶ 5.  People can spread 
the virus even if they are  “[a]symptomatic” or will “later become sick but are pre-

symptomatic,” and this type of unwitting diffusion accounts for more than 50% of COVID-
19 transmissions.  Id.  The United States Centers for Disease Control and Prevention 
(“CDC”) therefore recommends that people “maintain social distancing of a[t] least six feet 
and wear a face covering to reduce the risk of transmission.”  Id. ¶ 6.   
Based on these undisputed facts about the virus, as well as “published scientific 

literature,”  the  Minnesota  Department  of  Health  (“MDH”)  has  concluded  that  some 
settings pose greater risks of spread than others.  Id. ¶ 13.  For example, there is a 
heightened risk “when multiple persons gather close together for an extended period of 
time,” particularly in an indoor setting.  Id.  Activities that “involve higher levels of 
exertion and exhalation” can also pose problems because they “greatly increase the amount 

of airborne respiratory aerosol droplets that can carry” the virus.  Id. ¶ 20.  On the other 
hand, outdoor settings that allow for social distancing—as well as indoor settings where 
people wear face coverings and “do no[t] gather or linger”—are less risky.  Id. ¶ 14. 
                           B                                         
The pandemic has inspired significant government responses.  On March 13, 2020, 
the President declared a national emergency and approved major disaster declarations in 

all fifty states.  Miltich Decl., Exs. 5–6 [ECF No. 27-5–6].  That same day, Minnesota 
Governor Tim Walz declared a “peacetime emergency.”  Minn. Exec. Order 20-01; see 

, subds. 2–3.  This kicked off a series of executive orders intended to 
address  different  aspects  of  the  COVID-19  threat.    Compl.  ¶¶ 59–62  [ECF  No.  1] 
(characterizing these actions as “sweeping” and “unilateral”); see Defs.’ Mem. at 6 [ECF 

No. 26] (listing COVID-19-related executive orders meant to “slow[] the spread of the 
disease, protect[] the capacity of the State’s medical system, and ensur[e] the continued 
operation of critical sectors”).                                          
This  case  concerns  Minnesota’s  pandemic-related  restrictions  on  youth  sports.  
Organized youth sports activities were first halted between March 27 and May 21, 2020, 

at which point they were permitted to resume with a gradually loosening set of restrictions.  
Compl. ¶¶ 62, 64–70.  By July 1, both indoor and outdoor games and practices were once 
again allowed, and participants were not required to wear masks while playing.  Compl. 
¶¶ 70–71; see Minn. Exec. Order 20-63 ¶ 7(g) (May 27, 2020).1  That was more or less the 
state of affairs for the rest of the summer and early fall.               


1    On July 22, 2020, Governor Walz issued an executive order generally requiring all 
Minnesotans to wear face coverings in indoor businesses and public settings.  See Miltich 
Decl., Ex. 8 (“EO 20-81”) [ECF No. 27-8]; see also Minn. Voters All. v. Walz, __ F. Supp. 
3d __, No. 20-cv-1688 (PJS/ECW), 

 (D. Minn. Oct. 2, 2020) (denying 
a preliminary injunction in a constitutional challenge to EO 20-81).  That order allowed 
individuals to temporarily remove their face coverings “[w]hen participating in organized 
On  November  18,  in  response  to  record  numbers  of  “new  COVID-19  cases, 
hospitalizations and intensive care unit admissions, and deaths[,]” Governor Walz issued 
Executive Order 20-99, which imposed restrictions on a number of personal and business 

activities.  Miltich Decl., Ex. 9 at 1 (“EO 20-99”) [ECF No. 27-9].  As relevant here, that 
order generally required “Organized Youth Sports organizations [to] stop all in-person 
activities—including  practices,  group  workouts,  games,  and  tournaments”—until 
December 18, 2020.  

(g).2  Two more orders in December slightly modified EO 
20-99.  The first extended the ban on most in-person youth sports activities through January 

3,  2021,  while  allowing  certain  “[o]utdoor  workouts,  practices,  training,  [and]  skill-
building” to resume and allowing indoor sports facilities to reopen for individual exercise 
as long as “face coverings [were] worn by all persons at all times.”  Miltich Decl., Ex. 10 
¶¶ 1, 7–8 (“EO 20-103”) [ECF No. 27-10].  The second extended EO 20-103’s restrictions 
through January 10, 2021, but allowed public pools to open up for organized youth sports 

activities.  See Minn. Exec. Order 20-104 ¶¶ 1, 4 (Dec. 23, 2020).        
Finally, on January 6, Governor Walz issued Executive Order 21-01, which is 
currently in effect.  See Miltich Decl., Ex. 11 (“EO 21-01”) [ECF No. 27-11].  That order 


sports . . . while the level of exertion makes it difficult to wear a face covering.”  EO 20-
81 ¶ 10(a).                                                               

2    “Organized Youth Sports,” as used in the executive orders relevant to this case, 
means “any sports activity, where participants are children or adolescents, organized by an 
entity, association, club, or organization,” including “all sports offered by schools (public 
and nonpublic), the Minnesota State High School League, or similar organizations, as well 
as dance, cheerleading, and other sports traditionally offered by supplemental associations 
or organizations.”  

(g)(i).                                        
allows organized youth sports activities to continue so long as they abide by certain 
requirements, two of which matter to this case.  First, entities that provide organized youth 
sports  (and  the  indoor  and  outdoor  facilities  that  support  them)  must  develop  and 

implement a “COVID-19 Preparedness Plan in accordance with applicable guidance for 
youth sports available on [MDH’s] Stay Safe Minnesota website.”  

(g)(ii)–(iv).  
Second, “face coverings must be worn in accordance with applicable guidance for youth 
sports available on the Stay Safe Minnesota website.”3  

(g)(v).    
As of January 14, 2021, MDH had posted a 16-page guidance document concerning 

organized youth and adult sports activities.  Miltich Decl., Ex. 15 [ECF No. 27-15].  For 
purposes of the present motion, Plaintiffs take issue with two components of that guidance.  
The first is the document’s elaboration of the face-covering requirement.  It provides that 
face coverings must generally be “worn by all people at all times” and that “[p]eople are 
not permitted to remove their face coverings during activities that involve a high level of 

exertion.”  

 at 5–6.  People with medical conditions that “make it difficult to tolerate 
wearing a face covering” are exempt from the requirement.  

.  Athletes may 
temporarily remove their face coverings during several specified activities: while engaging 
in “wrestling contact” and gymnastic and cheer routines, during which a mask could 
present a choking hazard; while in the water for water sports; and while playing outside, 

where social distancing is possible.  

.  And when a child wears a helmet that 

3    In a different paragraph, EO 21-01 explicitly abrogated the paragraphs in EO 20-81 
that had allowed individuals to temporarily remove their face coverings during strenuous 
physical exercise.  EO 21-01 ¶ 7(c)(viii)(C).                             
“interferes with wearing a face covering safely or effectively,” the child may wear a “full 
face shield” instead.4  

                                               
The  second  restriction  that  Plaintiffs  challenge  is  the  limit  on  the  number  of 

spectators at youth sporting events.  For practices, the guidance “strongly discourage[s]” 
spectators but allows “[u]p to one spectator per participant.”  

.  For games, the 
guidance urges youth sports organizations to “[s]trongly consider limiting spectators to one 
to two people per participant,” but it imposes no absolute limit as long as they “comply 
with the appropriate venue guidance and capacity limits.”  

.      

                           C                                         
Plaintiff Let Them Play MN is a Minnesota non-profit corporation that “promotes 
youth participation in athletics and activities.”  Compl. ¶¶ 17–18; see Gillman Decl. ¶¶ 1–
2 [ECF No. 12].  Together with a group of unnamed youth sports athletes, coaches, and 
parents, Let Them Play first filed a lawsuit challenging Executive Order 20-99—which 

included the temporary ban on organized youth sports—in December 2020.  See Let Them 
Play MN v. Walz, No. 20-cv-2505 (JRT/HB) (D. Minn.), ECF No. 1.  Plaintiffs moved for 


4    According to one source, Minnesota is one of twenty states that currently require 
athletes to wear face coverings during competition.  National Federation of State High 
School  Associations,  Winter  Sports  Seasons  Guide,  (Feb.  5,  2021), 
https://www.nfhs.org/articles/winter-sports-seasons-guide/;  see,  e.g.,  Ill.  Dep’t  of  Pub. 
Health,  Sports  Safety  Guidance,  https://www.dph.illinois.gov/covid19/community-
guidance/sports-safety-guidance  (last  updated  Feb.  5,  2021).    Another  thirteen  states 
require athletes to wear face coverings except for during competition.  See Winter Sports 
Seasons  Guide,  supra;  see,  e.g.,  Ohio  Dep’t  of  Health,  Director’s  Order  for  Facial 
Coverings  Throughout  the  State  of   Ohio   (July  23,   2020),        
https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Facial-Coverings-
throughout-State-Ohio.pdf.                                                
a  preliminary  injunction  in  that  case,  arguing  that  EO  20-99’s  restrictions  on  social 
gatherings violated their First Amendment rights of free speech and assembly, and Chief 
Judge Tunheim denied their motion.  See Let Them Play MN v. Walz, No. 20-cv-2505 

(JRT/HB), 

, at *8–9 (D. Minn. Dec. 18, 2020).  Soon thereafter, 
Plaintiffs appealed and requested a preliminary injunction pending appeal, which the 
Eighth Circuit denied.  See Order, Let Them Play MN v. Walz, No. 20-3656 (8th Cir. Dec. 
28, 2020).  Plaintiffs then moved to dismiss their appeal and filed a notice of voluntary 
dismissal in the District Court on January 5, 2021.  See No. 20-cv-2505, ECF Nos. 29, 47, 

49.                                                                       
Plaintiffs filed this action three days later.  See generally Compl.  They claim that, 
through Minnesota’s restrictions on youth sports, Defendants—Governor Walz, Attorney 
General Keith Ellison, the Minnesota Department of Health, Commissioner of Health Jan 
Malcolm, and Commissioner Tarek Tomes, Governor Walz’s “designated coordinator of 

youth sports”—are violating their rights to equal protection, procedural due process, and 
substantive  due  process  under  the  Fourteenth  Amendment  to  the  United  States 
Constitution, and to equal protection and procedural due process under the Minnesota 
constitution.  

 ¶¶ 136–84.  In the present motion, Plaintiffs make two overarching 
requests.  First, they seek a preliminary injunction prohibiting Defendants from: 

     1.  enforcing Executive Order 21-01 or any other order policy,  
       practice,  or  procedure  that  disfavors  or  discriminates  
       against youth athletes or youth athletics without permission  
       from the Court;                                               

     2.  collecting  data  or  applying  public  health  terms  or   
       definitions to support predetermined policy choices that      
       disfavor young people and youth sports, or any other group    
       preselected and disfavored by Defendants; and                 

     3.  enforcing any MDH or other State agency rule that lacks     
       statutory  authorization—including  MDH’s  current  face      
       covering and spectator rules for youth sports—or that adds    
       to or contradicts an executive order; or, alternatively,      

     4.  [enforcing]  MDH’s  current  face  covering  and  spectator 
       rules.                                                        

Pl.’s Mot. at 1–2 [ECF No. 10].  Second, Plaintiffs seek an order authorizing them to take 
expedited discovery, which would include up to ten document requests, ten interrogatories, 
and two four-hour depositions of Defendants.  

.                   
                           II                                        
Before considering the merits of Plaintiffs’ motion, it is worth pausing to note two 
jurisdictional questions.  The first is which Defendants, if any, Plaintiffs may sue.  The 
Eleventh Amendment generally bars suits against “an unconsenting State . . . brought in 
federal courts by her own citizens as well as by citizens of another state.”  Pennhurst State 
Sch. & Hosp. v. Halderman, 

 (1984) (quotation omitted).  Under an 
exception to this general rule, recognized in Ex parte Young, 

 (1908), “a 
private party can sue a state officer in his official capacity to enjoin a prospective action 
that would violate federal law.”  281 Care Comm. v. Arneson, 

 (8th Cir. 
2011).  But the Ex parte Young exception only applies if the state official has “‘some 
connection’ with the enforcement of the allegedly unconstitutional law.”  Minn. Voters All., 
__ F. Supp. 3d __, 

, at *6 (citation omitted).             
In their response to Plaintiffs’ motion, Defendants do not argue that any individual 
Defendant lacks the requisite connection to the enforcement of Minnesota’s youth sports 
face-covering  requirements  and  spectator  limits.    Although  Eleventh  Amendment 

immunity is generally considered a matter of subject-matter jurisdiction that a court may 
raise on its own, see Fromm v. Comm’n of Veterans Affs., 

 (8th Cir. 
2000), a court is not required to do so, see Wisc. Dep’t of Corr. v. Schacht, 

  (1998).    Given  the  lack  of  briefing  and  evidence  on  this  question,  as  well  as 
Defendants’ statement that they “will move to dismiss on immunity grounds,” Defs.’ Mem. 

at 44, it makes sense to leave this question for another day.             
There is, however, a second Eleventh Amendment issue.  Plaintiffs claim that 
Defendants have violated the Minnesota constitution’s equal-protection and due-process 
guarantees, though they did not address this claim in their brief.  See Compl. ¶¶ 179–84.  
Under the Eleventh Amendment, a federal court lacks jurisdiction to order state officials 

to “conform their conduct to state law.”  Pennhurst, 

.  If Plaintiffs wish to 
raise these claims, they must do so in state court.  See Minn. Voters All., __ F. Supp. 3d __, 

, at *7 (holding that the court lacked jurisdiction over the plaintiffs’ 
claim that EO 20-81 violated the Minnesota constitution).                 
                          III                                        

Now move to the merits of Plaintiffs’ motion.  A preliminary injunction is an 
“extraordinary remedy.”  Winter v. Nat. Res. Def. Council, Inc., 

 (2008) 
(citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  The Eighth 
Circuit’s familiar Dataphase decision describes the list of considerations applied to decide 
whether to grant preliminary injunctive relief: “(1) the likelihood of the movant’s success 
on the merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) 
the balance between that harm and the harm that the relief would cause to the other litigants; 

and (4) the public interest.”  Lexis-Nexis v. Beer, 

 (D. Minn. 1999) 
(citation omitted).  The core question is whether the equities “so favor[] the movant that 
justice requires the court to intervene to preserve the status quo until the merits are 
determined.”  Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981) (en 
banc) (footnote omitted).  “The burden of establishing the four factors lies with the party 

seeking injunctive relief.”  CPI Card Grp., Inc. v. Dwyer, 

 (D. 
Minn. 2018) (citing Watkins, 

).                            
                           A                                         
“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (internal 

quotation marks and citations omitted).  Although this factor uses the term “probability,” 
the movant need not show a greater than fifty percent likelihood of success.  Dwyer, 

.  And the movant “need only show likelihood of success on the merits 
on a single cause of action, not every action it asserts[.]”  

  “[T]he absence of a likelihood 
of success on the merits strongly suggests that preliminary injunctive relief should be 

denied.”  CDI Energy Servs., Inc. v. W. River Pumps, Inc., 

 (8th Cir. 
2009).                                                                    
Before addressing Plaintiffs’ constitutional claims, it is necessary to say a word 
about the “lens through which to view [those] claims,” Heights Apartments, LLC v. Walz, 
__ F. Supp. 3d __, No. 20-cv-2051 (NEB/BRT), 

, at *9 (D. Minn. Dec. 
31, 2020), and specifically, the role of the Supreme Court’s decision in Jacobson v. 
Massachusetts, 

 (1905).  The Court in Jacobson upheld the constitutionality of 

a state compulsory-vaccination law enacted to combat a smallpox outbreak.  

 at 12–14, 
39.  In doing so, the Court said the following:                           
     Whatever may be thought of the expediency of this statute, it   
     cannot be affirmed to be, beyond question, in palpable conflict 
     with the Constitution. Nor, in view of the methods employed     
     to stamp out the disease of smallpox, can anyone confidently    
     assert that the means prescribed by the state to that end has no 
     real or substantial relation to the protection of the public health 
     and the public safety.                                          

.  Many courts have concluded that Jacobson provides the standard for reviewing 
all constitutional claims that arise during a public-health crisis.  See, e.g., In re Abbott, 

 (5th Cir. 2020), vacated on other grounds sub nom. Planned Parenthood v. 
Abbott, __ S. Ct. __, No. 20-305, 

 (U.S. Jan. 25, 2021); Lewis v. Walz, 
__ F. Supp. 3d __, No. 20-cv-1212 (DWF/HB), 

, at *4 (D. Minn. Sept. 
30, 2020).  Indeed, early on in the COVID-19 pandemic, the Eighth Circuit endorsed this 
approach, concluding that Jacobson established a “two-part framework” that governs “in 
the context of a public-health crisis”: a state “may implement measures that infringe on 
constitutional rights” unless those measures (1) have “no real and substantial relation” to 
public health, safety or morals or (2) are, “beyond all question, a plain, palpable invasion 
of rights secured by the fundamental law[.]”  In re Rutledge, 

, 1027–28 (8th 
Cir. 2020) (quoting Jacobson, 

).  In Rutledge, the Eighth Circuit held that, 
by failing to apply the Jacobson framework, a district court had “abused its discretion” and 
“produced a patently erroneous result.”  Id. at 1028.                     
The Supreme Court cast doubt on Jacobson’s significance in November 2020 when 

it decided Roman Catholic Diocese of Brooklyn v. Cuomo, 

 (2020).  The Court 
applied strict scrutiny in that case to evaluate the plaintiffs’ claims that state COVID-19-
related restrictions on attendance at religious services violated their rights under the Free 
Exercise Clause of the First Amendment, 

 at 66–67, and it never discussed or cited 
Jacobson.  See 

 (Gorsuch, J., concurring) (arguing that courts had “mistaken [the] 

modest decision in Jacobson for a towering authority that overshadows the Constitution 
during a pandemic”).  The majority did not explicitly reject or overturn Jacobson, and the 
Eighth Circuit has not revisited the issue after Roman Catholic Diocese of Brooklyn.5 
For purposes of this case, it is not necessary to decide between Jacobson and the 
“ordinary constitutional analysis.”  Heights Apartments, __ F. Supp. 3d __, 

, at *11.  First, as discussed below, the rational-basis standard likely governs 
Plaintiffs’ equal-protection claims.  It is far from clear that the Court in Jacobson did 
anything other than apply rational-basis review, particularly when one considers that the 
decision “pre-dated the modern tiers of scrutiny” applicable to such claims.  Roman 
Catholic Diocese of Brooklyn, 

 (Gorsuch, J., concurring).  Second, if 


5    Just three days ago, the Supreme Court granted in part another application for 
injunctive relief against state limitations on indoor worship services in South Bay United 
Pentecostal Church v. Newsom, __ S. Ct. __, No. 20A136 (20-746), 

 
(U.S. Feb. 5, 2021).  That case produced four separate signed opinions, none of which cited 
Jacobson.                                                                 
Jacobson does establish a different standard of review that applies only during a public-
health  crisis,  that  standard  would  certainly  be  more  deferential  than  the  typical 
constitutional analysis.  See Lewis, __ F. Supp. 3d __, 

, at *4 n.5.  

Because, as discussed below, Plaintiffs are not likely to succeed under normally applicable 
constitutional standards, they would necessarily be unlikely to succeed under Jacobson.  
With that background in mind, it is time to turn to Plaintiffs’ specific claims. 
                           1                                         
Start  with  the  equal-protection  claims.    “The  Equal  Protection  Clause  of  the 

Fourteenth Amendment commands that no [s]tate shall ‘deny to any person within its 
jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons 
similarly situated should be treated alike.”  City of Cleburne v. Cleburne Living Ctr., 

 (1985) (citing Plyler v. Doe, 

 (1982)).  The “first step” 
when  evaluating  an  equal-protection  claim  is  to  decide  “whether  the  plaintiff  has 

demonstrated that she was treated differently than others who were similarly situated to 
her.”  Adam & Eve Jonesboro, LLC v. Perrin, 

 (8th Cir. 2019) (quoting 
In re Kemp, 

 (8th Cir. 2018)).  Once a plaintiff clears that “threshold,” 
the next step is to apply the appropriate level of scrutiny to the challenged law.  Id.; see 
True v. Nebraska, 

, 683–84 (8th Cir. 2010).                   

                           a                                         
To succeed at the first step, Plaintiffs must show that they are similarly situated to 
another, more favorably treated group “in all relevant respects.”  Carter v. Arkansas, 

 (8th Cir. 2004) (quoting Bills v. Dahm, 

 (8th Cir. 
1994)); see Satanic Temple v. City of Belle Plaine, 

, 962 (D. Minn. 
2020).  A court must typically “look to the end or purpose of the legislation in order to 
determine whether persons are similarly situated in terms of that governmental system.”  

Gilmore v. Cnty. of Douglas, 

 (8th Cir. 2005) (quoting R. Rotunda, J. 
Nowak & J. Young, Treatise on Constitutional Law: Substance and Procedure § 18.2 (3d 
ed. 1999)).  Plaintiffs argue that youth sports have been treated less favorably than “adult 
sports and other non-sport activities.”  Pls.’ Mem. at 39.  Defendants respond that organized 
youth sports differ from those other groups in relevant respects.  Defs.’ Mem. at 16–18. 

Defendants have the better argument.  First, the record does not support Plaintiffs’ 
assertion that EO 21-01 and MDH’s related guidance treat youth sports less favorably than 
“adult sports” across the board.  On the contrary, EO 21-01 subjects “Organized Adult 
Sports” to the same restrictions as organized youth sports; organizations and facilities must 
implement a “COVID-19 Preparedness Plan,” and participants must generally wear face 

coverings at all times.  EO 21-01 ¶ 7(h).  And the MDH guidance document appears to 
apply the same face-covering rules and spectator limits without distinguishing between 
youth and adult sports.  See Miltich Decl., Ex. 15 at 5–8.                
When Plaintiffs argue that EO 21-01 treats “adult sports” more favorably, they seem 
to refer to the fact that the order exempts “[p]rofessional sports” and “[c]ollegiate sports” 

from the requirements that generally apply to “Organized Adult Sports.”  EO 21-01 
¶ 7(h)(i)(A)–(B); see Compl. ¶ 76 (discussing EO 20-99).  The record shows, however, that 
professional and collegiate sports are not similarly situated to youth sports in all relevant 
respects.  Specifically, professional and collegiate sports organizations are able to exercise 
significant, centralized control over athletes’ and coaches’ behavior, allowing them to 
“enforce isolation requirements” and ensure frequent testing.  Danila Decl. ¶¶ 24–25.  
Professional and collegiate groups also have greater economic resources at their disposal, 

many employing medical personnel that are dedicated to monitoring the health of their 
players and staff.  Id. ¶ 25.  Youth sports, by contrast, are simply not in a position to impose 
similar internal restrictions.  See id. ¶¶ 24–25.  If the goal is to use behavioral changes to 
control the spread of COVID-19, see Gilmore, 

, these differences are 
relevant.  Cf. Carter, 

 (concluding that “public school employees” and 

“state employees” were not similarly situated in a lawsuit challenging the amount of 
employer  health-insurance  contributions  because  “the  two  groups  ha[d]  different 
employers”).                                                              
The result is the same for the “other non-sport activities” that Plaintiffs’ argue are 
treated more favorably than youth sports.  First of all, Plaintiffs do not identify what these 

activities are.  But even setting that aside, there is no reason to believe that the other 
activities are similarly situated to youth sports.  That’s because sports, by their nature, 
almost always involve behaviors and settings that increase the risk of spreading COVID-
19—namely, multiple persons gathering closely, combined with “higher levels of exertion 
and exhalation.”  Danila Decl. ¶ 20.  Any non-sport activity that did not share these crucial 

characteristics would differ from youth sports in relevant respects.      
                           b                                         
If youth sports were similarly situated to professional and collegiate sports, the next 
step  would  be  to  decide  the  applicable  degree  of  scrutiny  with  which  to  examine 
Defendants’ policies.  “Where a law neither implicates a fundamental right nor involves a 
suspect  or  quasi-suspect  classification,”  courts  apply  the  rational-basis  standard.  
Gallagher v. City of Clayton, 

 (8th Cir. 2012).        

Plaintiffs argue that heightened scrutiny is warranted because this case implicates 
fundamental rights.  See Pls.’ Mem. at 32–34.6  The problem is that Plaintiffs have not 
identified with any specificity what fundamental right they believe is at play here.  “A 
fundamental right is one which is, ‘objectively, deeply rooted in this Nation’s history and 
tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice 

would exist if [it] were sacrificed.’”  Gallagher, 

 (quoting Washington v. 
Glucksberg, 

, 720–21 (1997)).  Plaintiffs refer at one point to a “right to 
engage in activities necessary for their physical and mental health,” Pls.’ Mem. at 32, but 
more frequently they use broad phrases like “basic liberty interests,” id. at 33.  Similarly, 
at the hearing on this motion, Plaintiffs’ counsel suggested that Plaintiffs are asserting a 

general right to protection from harmful government action.  Given the nature of the facts 
and legal arguments in this case, however, Plaintiffs really seem to be asserting a more 
specific right: the right to participate, without restriction, in organized youth sports. 
Plaintiffs  provide  no  authority  suggesting  that  such  a  right  (in  the  relevant 
constitutional sense) exists.  They rely principally on Ramos v. Town of Vernon, in which 


6    Plaintiffs also hint, but do not directly argue, that EO 21-01 and the related MDH 
guidance are subject to heightened scrutiny because they discriminate against younger 
athletes  in  favor  of  older  ones.    Age,  however,  is  not  a  suspect  or  quasi-suspect 
classification,  so  differential  treatment  based  on  age  does  not  automatically  trigger 
heightened scrutiny.  See City of Cleburne, 473 U.S. at 441–42.           
the Second Circuit applied intermediate scrutiny to a juvenile curfew ordinance.  

 (2d Cir. 2003).  But Ramos involved a constitutionally recognized fundamental 
right to travel.  See 

  Similarly, all of the other cases that Plaintiffs cite involved either 

recognized constitutional rights or suspect classifications.  See Lawrence v. Texas, 

 (2003) (addressing the right to engage in private sexual acts in the home); Wengler 
v. Druggists Mut. Ins. Co., 

 (1980) (applying intermediate scrutiny to a 
gender-based classification); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & 
Mary, 

, 534–35 (1925) (addressing a compulsory-public-education law that 

implicated parents’ rights to “direct the upbringing and education of children under their 
control”); White v. Smith, 

 (8th Cir. 2012) (addressing a criminal 
defendant’s “liberty interest . . . in obtaining fair criminal proceedings” (citation omitted)); 
Johnson v. City of Opelousas, 

, 1071–72 (5th Cir. 1981) (addressing juvenile 
curfew ordinances that implicated the First Amendment ); Townes v. City of St. Louis, 

 (E.D. Mo. 1996) (assuming that the Constitution protected a right to 
intrastate travel and applying intermediate scrutiny to an ordinance closing a street); cf. 
City  of  Cleburne,  473 U.S.  at  446–48  (applying  rational-basis  review).    There  is  no 
reasonable connection between these cases and Plaintiffs’ claims.         
                           c                                         

In the absence of a suspect classification or a fundamental right, the rational-basis 
standard applies.  Under that standard, a challenged state law will be upheld as long as it is 
“rationally related to a legitimate government interest.”  Gallagher, 

.  
Plaintiffs do not seem to dispute that Minnesota has a legitimate interest in controlling the 
spread of COVID-19, and it is hard to see how they could.  See Rutledge, 

; 
Heights Apartments, __ F. Supp. 3d __, 

, at *12; Let Them Play MN, 

, at *6; see also, e.g., Roman Catholic Diocese of Brooklyn, 

; Vill. of Orland Park v. Pritzker, 

, 886 (N.D. Ill. 2020).  Instead, 
Plaintiffs argue that Minnesota’s youth-sports restrictions are arbitrary and irrational in 
relation to that interest.  See Pls.’ Mem. at 39–40.                      
Rational-basis review sets a low bar.  The challenged law is presumptively valid, 
and a plaintiff can only overcome that presumption by showing that no “reasonably 

conceivable state of facts” could support the law.  F.C.C. v. Beach Commc’ns, Inc., 

,  313–15  (1993).    A  challenged  law  may  survive  even  if  it  is  both 
overinclusive  and  underinclusive  in  advancing  the  asserted  interest,  see  Gallagher, 

 (citing Vance v. Bradley, 

 (1979)), and even if it is based 
on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns, 

.  Moreover, the state decisionmakers’ “subjective motives” for imposing 
the challenged restrictions are “irrelevant for constitutional purposes.”  Barket, Levy & 
Fine, Inc. v. St. Louis Thermal Energy Corp., 

 (8th Cir. 1994) (citations 
omitted).  In other words, under these long-settled principles, it doesn’t matter whether 
Plaintiffs have the better policy argument.  The question isn’t whether the state has made 

the best decision.  The question the law requires us to answer is whether the challenged 
policies have some rational basis.                                        
Under this standard, Plaintiffs have not shown that Minnesota’s face-covering and 
spectator requirements likely violate the Equal Protection Clause.  In the preamble to EO 
21-01, Governor Walz acknowledged that the state was facing a “challenging balancing 
act.”  EO 21-01 at 2.  He concluded that restrictions like the ones that Plaintiffs challenge 
were necessary because lifting the temporary ban on certain activities, like youth sports, 

would increase the risk of COVID-19 transmission.  

  He described his reasoning for 
that conclusion in some detail:                                           
     [S]ome  settings  continue  to  pose  more  risks  than  others.  
     Indoor  activities  pose  higher  risks  than  outdoor  activities.  
     Strenuous  activities  resulting  in  increased  respiration  pose 
     higher risk than sedentary activities.  Unpredictable settings are 
     riskier than more predictable and controlled settings.  Settings 
     conducive to prolonged contact provide more opportunity for     
     transmission  than  settings  featuring  more  transitory       
     interactions.                                                   

  Based on the whole record in this case, it is perfectly reasonable to conclude that youth 
sports—which often involve sustained close contact, physical exertion, and large groups 
of spectators—would pose a risk of transmission.  According to Defendants’ evidence, 
sports have been associated with multiple COVID-19 outbreaks throughout the country.  
Danila Decl. ¶¶ 21–22, Exs. 1–5 [ECF Nos. 28-1 through 28-5].  In Minnesota, MDH has 
“traced at least 334 outbreaks and 10,207 positive COVID-19 cases to sports activities” 
and found that “[s]ports-related cases are more than twice as prevalent among high school-
age children as any other age group[.]”7  Id. ¶ 23.  It is also reasonable to conclude that the 

7    Plaintiffs argue that Defendants have arbitrarily applied inconsistent definitions of 
“outbreak” to sports-related and non-sports-related activites in order to systematically 
disfavor sports.  See Pls.’ Mem. at 14–16.  There are two problems with this argument.  
First, it appears that MDH applies one “outbreak” definition to “sports” in general, not to 
youth sports in particular.  See Diehl Decl., Ex. U at 4 [ECF No. 16-16].  Second, 
Defendants  have  provided  a  rational  basis  for  their  approach—specifically,  that  the 
threshold number of positive cases required for an outbreak is lower for sports because 
face-covering and spectator restrictions would lessen this risk.  Social distancing is a basic 
recommendation for limiting the spread of COVID-19.  See id. ¶ 6.  The American 
Academy of Pediatrics has specifically recommended that children wear face coverings 

while playing sports, id. ¶ 28, Ex. 12 at 4 [ECF No. 28-12], and a recent nationwide survey 
found that the use of face coverings was associated with decreased COVID-19 infections 
in high-school athletes, at least for indoor sports, id. ¶ 30, Ex. 14 at 2 [ECF No. 28-14].  
Numerous courts in this District and around the country have concluded that similar—and 
some more severe—restrictions satisfied the rational-basis standard.  See Lewis, __ F. 

Supp. 3d __, 

, at *5 (dismissing an equal-protection challenge to 
executive orders limiting the size of in-person gatherings); see also, e.g., Big Tyme Invs., 
L.L.C. v. Edwards, __ F.3d __, Nos. 20-30526, 20-30537, 

, at *9 (5th Cir. 
Jan.  13,  2021)  (upholding  an  executive  order  prohibiting  on-site  food  and  alcohol 
consumption at bars); League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 

, 127–30 (6th Cir. 2020) (staying a lower court injunction against an 
executive order closing indoor fitness facilities); Talleywhacker, Inc. v. Cooper, 

, 538–540 (E.D.N.C. 2020) (upholding an executive order closing various 
entertainment businesses, including dance clubs and music venues).        
To be sure, Plaintiffs present another side of the story with their evidence.  They 

have submitted affidavits from multiple individual physicians opining that it is not safe for 


sports typically involve “frequent in-person interactions with a recurring group of the same 
people,” which makes it “much more likely that two positive COVID-19 tests are related” 
as compared to other settings.  Danila Decl. ¶ 19.                        
children to wear masks while playing sports.  See Arthur Decl. ¶¶ 18–20 [ECF No. 13]; 
Alm Decl. ¶¶ 17–30 [ECF No. 14]; Waibel Decl. ¶¶ 14–23 [ECF No. 24]; Poirier Decl. 
¶¶ 15–18 [ECF No. 25].8  The concern, according to these sources, is that masks could 

hamper an athlete’s breathing, leading to dizziness, hyperventilation, and other negative 
effects.  E.g., Alm Decl. ¶¶ 19–22; see Gilman Decl. ¶ 6 [ECF No. 12].  Or they could 
obstruct an athlete’s vision, increasing the risk of collisions and related concussive injuries.  
E.g., Poirier Decl. ¶¶ 15–18.  Plaintiffs provide anecdotal evidence, including videos, to 
show that some of these injuries may already have occurred.  See Peterson Decl., Ex. 1 

[ECF No. 17]; Trost Decl. [ECF No. 18].  Plaintiffs also emphasize the significant physical 
and emotional benefits of participation in youth sports, and with their Complaint, they 
included a summary of a Wisconsin study finding that “participation in sports is not 
associated with an increased risk of COVID-19[.]”  Compl. Ex. E at 3 [ECF No. 1-5].  All 
of this evidence shows that Plaintiffs have a reasonable, good-faith policy disagreement 

with  Minnesota’s  approach  to  combating  COVID-19  in  youth  sports.    But  their 
disagreement is ultimately a political one; it does not show that Defendants likely violated 
the Equal Protection Clause.  See S. Bay United Pentecostal Church v. Newsom, 

 (2020) (Roberts, C.J., concurring) (“The precise question of when restrictions 
on particular social activities should be lifted during the pandemic is a dynamic and fact-

intensive matter subject to reasonable disagreement.  Our Constitution principally entrusts 


8    Plaintiffs improperly filed some of these affidavits outside of the ordered briefing 
schedule.  See ECF No. 21; see generally Local Rule 7.1.  All of Plaintiffs’ evidence has 
nonetheless been considered.                                              
the safety and health of the people to the politically accountable officials of the [s]tates to 
guard and protect.” (internal quotation marks, alterations, and citation omitted)).9 
                           2                                         

Now turn to Plaintiffs’ claim that Defendants violated their right to procedural due 
process.  To succeed on this claim, Plaintiffs must show two things: “(1) the existence of a 
constitutionally protected liberty or property interest; and (2) that [Defendants] deprived 
[them] of that interest without constitutionally adequate process.”  Raymond v. Bd. of 
Regents of Univ. of Minn., 

 (D. Minn. 2015) (citations omitted).  

Plaintiffs essentially argue that it violates due process for Governor Walz to require them 
to follow the guidance released on MDH’s website because that guidance exceeds MDH’s 
statutory authority and is being continually updated without following statutory rulemaking 
procedures.  See Pls.’ Mem. at 34–38.                                     
Plaintiffs are not likely to succeed on their procedural-due-process claim.  First, just 

as Plaintiffs do not identify a fundamental right for purposes of their equal-protection and 
substantive-due-process claims, they have not identified a protected liberty or property 
interest here.  “Protected liberty interests ‘may arise from two sources—the Due Process 
Clause itself and the laws of the States.”  Senty-Haugen v. Goodno, 

 (8th 
Cir. 2006) (quoting Kentucky Dep’t of Corr. v. Thompson, 

 (1989)).  


9    Because Plaintiffs have identified no fundamental right, and because the challenged 
restrictions likely satisfy the rational-basis standard, Plaintiffs are not likely to succeed on 
the merits of their substantive-due-process claim.  See Schmidt v. Ramsey, 

 (8th Cir. 2017) (explaining that a “rational basis for equal protection purposes also 
satisfies substantive due process analysis” (internal quotation marks and citation omitted)); 
accord Minnesota v. Clover Leaf Creamery Co., 

, 470 n.12 (1981). 
Although an “independent source” like state law must create the underlying substantive 
interest, “federal constitutional law determines whether the interest rises to the level of 
entitlement protected by the Due Process Clause.”  Patel v. City of Sauk Centre, 

 (D. Minn. 2007) (quoting Memphis Light, Gas & Water Div. v. Craft, 

 (1978)) (internal quotation marks omitted).  As noted above, Plaintiffs refer 
generally to a “right to engage in activities necessary for their mental and physical health,” 
Pls.’ Mem. at 32, but they do not identify any state-law sources creating such a right.  
Moreover, what they really seem to assert are rights to participate in organized youth sports 

without a face covering and to have more than one spectator present at youth sporting 
events.  Plaintiffs do not identify any authority suggesting that the federal Due Process 
Clause protects those rights.                                             
Second, if Plaintiffs had identified a constitutionally protected interest, they have 
not shown that they were likely deprived of that interest without adequate process.  All of 

Plaintiffs’  arguments  are  focused  on  the  propriety  of  Minnesota’s  face-covering 
requirements and spectator rules under Minnesota state law.  See Pls.’ Mem. at 34–38.  But 
violations of state law, standing alone, do not ordinarily give rise to a federal due-process 
violation.  See Holloway v. Reeves, 

 (8th Cir. 2002).  What Plaintiffs 
seek, in practical effect, is an injunction forcing state officials to comply with state law.  

As noted above, the Eleventh Amendment bars such injunctions.  Greene v. Dayton, 

 (8th Cir. 2015); see Pennhurst, 

; Minn. Voters All., __ F. 
Supp. 3d __, 

, at *7.  It is therefore unsurprising that other courts 
addressing challenges to COVID-19 restrictions have rejected procedural-due-process 
claims premised on state-law violations.  See, e.g., Stewart v. Justice, __ F. Supp. 3d __, 
Civ. Action No. 3:20-611, 

, at *2 & n.2 (S.D. W. Va. Nov. 24, 2020); 
Murphy v. Lamont, No. 3:20-CV-0694 (JCH), 

, at *11 (D. Conn. Aug. 

3, 2020).                                                                 
There is also another, more fundamental flaw in Plaintiffs’ due-process claim.  The 
Due Process Clause’s classic procedural guarantees of notice and an opportunity to be 
heard only come into play “when the government makes an individualized determination, 
not when the government commits a legislative act equally affecting all those similarly 

situated.”  Foster v. Hughes, 

 (8th Cir. 1992) (citations omitted).  The 
idea behind this rule is that “the rights of an individual affected by a law of general 
applicability ‘are protected in the only way that they can be in a complex society, by [the 
affected  individual’s]  power,  immediate  or  remote,  over  those  who  make  the 
rule.’”  Hartman v. Acton, __ F. Supp. 3d __, No. 2:20-CV-1952, 

, at *8 

(S.D. Ohio Apr. 21, 2020) (quoting Bi-Metallic Inv. Co. v. State Bd. of Equalization, 

 (1915)).  It does not matter whether the government actor in question is 
formally a part of the legislative or executive branch; what matters is whether the action 
taken was “legislative”—i.e., whether it produced generally applicable “policy-type rules 
or standards”—or whether it was “adjudicative”—i.e., whether it “adjudicate[d] disputed 

facts in particular cases.”  United States v. Fla. E. Coast Ry. Co., 

 (1973) 
(acknowledging that an administrative agency can engage in either type of action).  This 
basic  distinction  between  legislative  and  adjudicative  acts  dates  back  more  than  a 
century.  See Bi-Metallic Inv. Co., 

; Londoner v. Denver, 

 
(1908); 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance 
& Procedure § 17.8(c) (May 2020 Update).                                  
Plaintiffs do not argue that Minnesota’s face-covering requirements and spectator 

limits are anything other than legislative in character.  Indeed, Plaintiffs and Defendants 
conceded at the hearing that the restrictions are generally applicable.  So, as long as 
Defendants make the policies available to the public, as they undisputedly have done, no 
more process is required.  See, e.g., Bimber’s Delwood, Inc. v. James, __ F. Supp. 3d __, 
No. 20-CV-1043S, 

, at *14–15 (W.D.N.Y. Oct. 21, 2020); Six v. 

Newsom, 

, 1073 (C.D. Cal. 2020); Hernandez v. Grisham, __ F. Supp. 
3d __, No. CIV 20-0942 JB/GBW, 

, at *52 (D.N.M. Dec. 18, 2020); 
Hartman, 

, at *7–8; Hund v. Cuomo, __ F. Supp. 3d __, No. 20-cv-1176 
(JLS), 

, at *11 (W.D.N.Y. Nov. 13, 2020).  For all these reasons, 
Plaintiffs are not likely to succeed on the merits of their claims, which “strongly suggests” 

that their motion should be denied.  CDI Energy Servs., Inc., 

. 
                           B                                         
The second Dataphase factor is irreparable harm, which “occurs when a party has 
no adequate remedy at law, typically because its injuries cannot be fully compensated 
through an award of damages.”  Gen. Motors Corp. v. Harry Brown’s, LLC, 

 (8th Cir. 2009).  The harm must be “likely in the absence of an injunction,” Winter, 

, “great[,] and of such imminence that there is a clear and present need for 
equitable relief,”  Iowa Utils. Bd. v. FCC, 

, 425 (8th Cir. 1996).  A plaintiff 
must show more than a future risk of irreparable harm; “[t]here must be a clear showing of 
immediate irreparable injury.”  Berkley Risk Adm’rs Co. v. Accident Fund Holdings Inc., 
No. 16-cv-2671 (DSD/KMM), 

, at *4 (D. Minn. Aug. 24, 2016) (internal 
quotation  marks  and  citation  omitted).    “Failure  to  show  irreparable  harm  is  an 

independently sufficient ground upon which to deny a preliminary injunction.”  Watkins, 
Inc., 

; see also Gamble v. Minn. State Indus., No. 16-cv-2720 (JRT/KMM), 

, at *2 (D. Minn. Dec. 1, 2017) (collecting cases).        
Plaintiffs’ only argument on this point is that their likelihood of success on the 
merits of their constitutional claims establishes irreparable harm.  Pl.’s Mem. at 40 (citing 

Phelps-Roper v. Nixon, 

 (8th Cir. 2008), overruled on other grounds by 
Phelps-Roper v. City of Manchester, 

 (8th Cir. 2012) (en banc)).  There are 
three problems with this argument.  First, Plaintiffs have not shown a likelihood of success 
on the merits of their claims.  See Powell v. Noble, 

 (8th Cir. 2015).  
Second, all of the cases Plaintiffs cite for this theory of irreparable harm involved likely 

First Amendment violations.  Although the Supreme Court has recognized that “[t]he loss 
of  First  Amendment  freedoms,  for  even  minimal  periods  of  time,  unquestionably 
constitutes  irreparable  injury,”  Elrod  v.  Burns,  

  (1976)  (plurality 
opinion), Plaintiffs do not assert a First Amendment claim here, and it is not at all clear 
that the principle from Elrod applies in other constitutional contexts.  See Plastino v. 

Koster, No. 4:12-CV-1316 CAS, 

, at *3 & n.5 (E.D. Mo. Apr. 24, 2013) 
(concluding that temporary violations of the Second Amendment and the Equal Protection 
Clause would not automatically constitute irreparable harm); cf. Munt v. Larson, No. 
15-cv-582 (SRN/SER), 

, at *12 n.18 (D. Minn. Sept. 23, 2015) (“[T]he 
deprivation of constitutional rights related to the Eighth Amendment and medical treatment 
does not necessarily constitute irreparable harm[.]”).  Third, even in the First Amendment 
context, the Supreme Court has stated that “a preliminary injunction does not follow as a 

matter of course from a plaintiff’s showing of a likelihood of success on the merits.”  
Benisek v. Lamone, 

, 1943–44 (2018) (per curiam) (assuming that plaintiffs 
were  likely  to  succeed  on  the  merits  a  First  Amendment  challenge  to  partisan 
gerrymandering but reversing a preliminary injunction based on the balance of the equities 
and the public interest).                                                 

If Plaintiffs had made an independent argument for irreparable harm, they would 
have faced a difficult burden.  Irreparable harm must be both imminent and attributable to 
the defendant’s conduct.  See Iowa Utils. Bd., 109 F.3d at 425; Gen. Motors Corp., 590 F. 
Supp. 2d at 1137.  As noted above, Plaintiffs have presented evidence that wearing face 
coverings may cause some youth athletes to suffer physical injuries.  But that generalized 

risk does not show that the specific Plaintiffs in this case are likely to suffer immediate 
injuries in the absence of an injunction and that those injuries would be attributable to 
Defendants’ face-covering requirements, as opposed to some other risk inherent in playing 
youth sports.  Moreover, it is not clear on this record that an injunction against Defendants 
would eliminate whatever increased risk of injury flows from wearing face coverings.  

That’s because such an order would not prevent private sports facilities from imposing and 
enforcing their own face-covering requirements.10  See Shelton v. City of Springfield, No. 

10   Here,  it  is  worth  noting  that  the  President  recently  issued  an  executive  order 
requiring federal agencies to “encourage widespread mask-wearing” and to engage with 
6:20-cv-3258-MDH, 

, at *3 (W.D. Mo. Sept. 2, 2020) (denying a request 
for a temporary restraining order against a mask ordinance in part because such an order 
“would not prevent business[es] and churches from adopting their own facial covering 

requirements”).  In short, Plaintiffs have not shown that they will suffer irreparable harm 
in the absence of the requested relief.                                   
                           C                                         
The last two factors to consider are the balance of the relative harms and the public 
interest.  For practical purposes, these factors “merge” when a plaintiff seeks injunctive 

relief against the government.  Nken v. Holder, 

 (2009); see Angelica C. 
v. Immigr. & Customs Enf’t, No. 20-cv-913 (NEB/ECW), 

, at *17 (D. 
Minn. June 5, 2020), report and recommendation adopted, 

 (D. Minn. 
June 23, 2020).  Once again, Plaintiffs argue only that their likelihood of success on the 
merits establishes that the equities and the public interest weigh in their favor.  Pls.’ Mem. 

at 40–41.  Defendants, for their part, argue that the requested injunction “would deal a 
major blow to Minnesota’s efforts to stem the spread of COVID-19.”  Defs.’ Mem. at 35. 
Plaintiffs have not shown that the equities or the public interest favor the injunction 
they  seek.    As  discussed  above,  Plaintiffs  rely  only  on  cases  involving  the  First 
Amendment, and in any event, they are not likely to succeed on the merits.  Moreover, 

Defendants and the public both have a substantial interest in combatting the spread of 
COVID-19.    In  an  attempt  to  do  this,  Defendants  have  adopted  measures  that  are 

“business . . . and other community leaders” to achieve that result.  Miltich Decl. Ex. 12 at 
3 [ECF 27-12].                                                            
undisputedly recommended by public-health experts and that are supported by a rational 
basis.  As with all public-policy decisions, those measures may come with disadvantages 
and risks, but Defendants have concluded that the benefits outweigh the drawbacks.  A 

federal court is no better positioned to second-guess those judgments when balancing the 
equities than when evaluating the merits of an equal-protection claim.  See Minn. Voters 
Alliance, __ F. Supp. 3d __, 

, at *13; see also Talleywhacker, Inc., 465 F. 
Supp. 3d at 543 (concluding that the public interest weighed against an injunction “where 
defendant ha[d] taken intricate steps to craft reopening policies to balance the public health 

and economic issues associated with the COVID-19 pandemic”).  Once again, Plaintiffs’ 
remedy, if any, lies with Minnesota’s political processes.  Because none of the Dataphase 
factors  weigh  in  favor  of  injunctive  relief  here,  Plaintiffs’  request  for  a  preliminary 
injunction will be denied.                                                
                          IV                                         

Finally,  along  with  their  request  for  a  preliminary  injunction,  Plaintiffs  seek 
permission to conduct expedited discovery.  Specifically, Plaintiffs would like to serve up 
to ten document requests and ten interrogatories on Defendants and schedule two four-hour 
depositions of Defendants.  ECF No. 10 at 2.  In their brief, Plaintiffs argue that “[t]he 
freedom of Minnesota kids to move, be active, and improve their mental health free from 

unlawful and discriminatory intrusion warrants expedited discovery,” Pls.’ Mem. at 42, but 
they do not say what information they seek.  Defendants respond that Plaintiffs have not 
shown  good  cause  for  expedited  discovery  and  that  their  requests  would  be  unduly 
burdensome.  Defs.’ Mem. at 41–44.                                        
The general rule is that “[a] party may not seek discovery from any source before 
the parties have conferred as required by Rule 26(f).”  Fed. R. Civ. P. 26(d)(1).  Some 
courts,  however,  have  found  that  expedited  discovery  is  “appropriate  in  limited 

circumstances and for limited rationales.” Midwest Sign & Screen Printing Supply Co. v. 
Dalpe, 

 (D. Minn. 2019) (quoting ALARIS Grp., Inc. v. 
Disability Mgmt. Network, Inc., No. 12-cv-446 (RHK/LIB), 

, at *2 (D. 
Minn. May 30, 2012)).  The party seeking discovery must typically show “good cause”—
i.e., that “the need for expedited discovery . . . outweighs [the] prejudice to the responding 

party.”  Nilfisk, Inc. v. Liss, No. 17-cv-1902 (WMW/FLN), 

, at *7 (D. 
Minn. June 15, 2017) (quoting Oglala Sioux Tribe v. Van Hunnik, 

 
(D.S.D. 2014)).  In determining whether to grant expedited discovery, courts frequently 
consider: “(1) whether a preliminary injunction is pending; (2) the breadth of discovery 
requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the 

defendants to comply with the requests; and (5) how far in advance of the typical discovery 
process the request was made.”   ALARIS Grp., 

, at *2 (quoting 
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 

 (D.D.C. 2006)).                                                      
In this case, there is no need to consider the potential prejudice to Defendants, 

because Plaintiffs have not shown that there is any need for expedited discovery.  First, 
although Plaintiffs combined their request for expedited discovery with their request for a 
preliminary injunction, they have not shown that the two are related.  A common reason to 
grant expedited discovery is to ensure that the record is adequately developed in advance 
of a preliminary-injunction hearing.  See Nilfisk, Inc., 

, at *7; Edudata 
Corp. v. Sci. Computs., Inc., 

 (D. Minn. 1984).  That is not a 
concern here.  Plaintiffs have never argued that they needed discovery before they could 

file a “well-supported [preliminary] injunction motion,” Nilfisk, Inc., 

, 
at  *7,  and  the  Parties  have  been  able  to  create  a  “relatively  robust  record  without 
discovery.”  Dalpe, 

.                              
Second,  Plaintiffs’  discovery  requests  are  extremely  broad.    The  purpose  of 
expedited discovery is to allow a party to obtain specific, limited, and identifiable pieces 

of information, particularly when there is some risk of spoliation or when the suit cannot 
reasonably proceed without the information.  See, e.g., Council on Am.-Islamic Relations—
Minn. v. Atlas Aegis, LLC, No. 20-cv-2195 (NEB/BRT), 

, at *6 (D. 
Minn. Oct. 29, 2020) (granting expedited discovery to allow plaintiffs to obtain names and 
contact information for ten John Doe defendants); see also 8A Richard L. Marcus, Federal 

Practice and Procedure § 2046.1 n.10 (3d ed. Oct. 2020 Update) (collecting cases).  There 
is no apparent risk of spoliation here.  Plaintiffs have made no attempt to limit the scope of 
topics to be explored in their proposed discovery.  And they have not said which specific 
Defendants they seek to depose.  Without guardrails like these, expedited discovery in this 
case would undoubtedly exceed its intended scope.                         

Finally,  without  any  indication  of  what  the  Plaintiffs  hope  to  discover,  it  is 
impossible to evaluate their purpose in seeking discovery.  Instead, given the broad and 
open-ended nature of the Plaintiffs’ requests, the most natural conclusion is that they 
simply wish to start discovery ahead of schedule.  That’s not what expedited discovery is 
for.  Plaintiffs’ request for expedited discovery will therefore be denied. 

Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS  HEREBY  ORDERED  THAT  Plaintiffs’  Motion  for  Preliminary  Injunction  and 
Expedited Discovery [ECF No. 10] is DENIED.                               
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          



Dated:  February 8, 2021      s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court                

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Let Them Play MN; Jane Doe 1, both      File No. 21-cv-79 (ECT/DTS)       
individually and as parent and guardian of                                
Jane Doe 2 and John Moe 3, minors; John                                   
Moe 4, as parent and guardian of John Moe                                 
5, a minor; Jane Doe 6; Jane Doe 7, as                                    
parent and legal guardian of John Moe 8 and                               
Jane Doe 9, minors,                                                       

     Plaintiffs,                                                     
                                    OPINION AND ORDER                
v.                                                                        

Governor Tim Walz, in his official capacity;                              
Attorney General Keith Ellison, in his                                    
official capacity; Commissioner Jan                                       
Malcolm, in her official capacity;                                        
Commissioner Tarek Tomes, in his official                                 
capacity as designated coordinator of youth                               
sports for the Administration of Governor                                 
Tim Walz; Minnesota Department of Health,                                 

     Defendants.                                                     
________________________________________________________________________  
Samuel W. Diehl and Ryan Wilson, CrossCastle, P.A., Minneapolis, MN, for Plaintiffs. 

Cicely R. Miltich and Elizabeth C. Kramer, Office of the Minnesota Attorney General, St. 
Paul, MN, for Defendants.                                                 


This case concerns the state of Minnesota’s decision to require youth athletes to 
wear face coverings while participating in organized sports activities and to limit spectators 
at organized youth sports events, both in an effort to limit the spread of COVID-19.  
Plaintiffs  are  Let  Them  Play  MN—a  non-profit  corporation  that  opposes  these 
restrictions—and several anonymous youth athletes, parents, and coaches.  In this lawsuit, 
Plaintiffs claim that the face-covering requirement and spectator limits violate their rights 
under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, 
as well as similar guarantees under the Minnesota constitution.  Plaintiffs have moved for 

a  preliminary  injunction  that  would  bar  Minnesota’s  officials  from  enforcing  the 
challenged restrictions and for leave to seek expedited discovery.        
The motion will be denied in all respects.  Plaintiffs have not shown that they are 
likely to succeed on the merits of their constitutional claims, that they would suffer 
irreparable harm in the absence of an injunction, that the equities and public interest weigh 

in their favor, or that there is any need for expedited discovery.  What Plaintiffs have shown 
are sincere, reasonable, and good-faith objections to Minnesota’s policies.  Plaintiffs’ 
primary concern is that, when worn by athletes engaged in high-intensity contact sports 
such as ice hockey and basketball, face coverings heighten the risk of significant injuries, 
and the evidence Plaintiffs have submitted to support the validity of this concern is credible.  

Regardless, for many decades now, our federal Constitution has been understood to give 
the political branches great latitude to resolve difficult questions concerning social and 
economic policy.  These are just the type of decisions Plaintiffs challenge here: the 
challenged policies balance the interests of limiting the spread of COVID-19 and its 
sometimes-lethal consequences with the unquestionably positive benefits of permitting 

Minnesotans to participate in organized sports.  Even if Plaintiffs had the better argument 
as a matter of policy, the law is clear that the appropriate audience for their argument and 
objections are Minnesota’s political branches, not a federal court.       
                           I                                         
                           A                                         
As most are now aware, COVID-19 is a disease caused by a virus called SARS-

CoV-2.  Danila Decl. ¶ 5 [ECF No. 28].  The disease has proven deadly; as of February 2, 
2021, Minnesota had seen at least 462,528 confirmed cases of COVID-19 and 6,202 deaths.  
Id. ¶ 6.  The virus is “primarily spread by respiratory droplets carried through the air and 
released when people talk, breathe or exhale, cough, or sneeze.”  Id. ¶ 5.  People can spread 
the virus even if they are  “[a]symptomatic” or will “later become sick but are pre-

symptomatic,” and this type of unwitting diffusion accounts for more than 50% of COVID-
19 transmissions.  Id.  The United States Centers for Disease Control and Prevention 
(“CDC”) therefore recommends that people “maintain social distancing of a[t] least six feet 
and wear a face covering to reduce the risk of transmission.”  Id. ¶ 6.   
Based on these undisputed facts about the virus, as well as “published scientific 

literature,”  the  Minnesota  Department  of  Health  (“MDH”)  has  concluded  that  some 
settings pose greater risks of spread than others.  Id. ¶ 13.  For example, there is a 
heightened risk “when multiple persons gather close together for an extended period of 
time,” particularly in an indoor setting.  Id.  Activities that “involve higher levels of 
exertion and exhalation” can also pose problems because they “greatly increase the amount 

of airborne respiratory aerosol droplets that can carry” the virus.  Id. ¶ 20.  On the other 
hand, outdoor settings that allow for social distancing—as well as indoor settings where 
people wear face coverings and “do no[t] gather or linger”—are less risky.  Id. ¶ 14. 
                           B                                         
The pandemic has inspired significant government responses.  On March 13, 2020, 
the President declared a national emergency and approved major disaster declarations in 

all fifty states.  Miltich Decl., Exs. 5–6 [ECF No. 27-5–6].  That same day, Minnesota 
Governor Tim Walz declared a “peacetime emergency.”  Minn. Exec. Order 20-01; see 

, subds. 2–3.  This kicked off a series of executive orders intended to 
address  different  aspects  of  the  COVID-19  threat.    Compl.  ¶¶ 59–62  [ECF  No.  1] 
(characterizing these actions as “sweeping” and “unilateral”); see Defs.’ Mem. at 6 [ECF 

No. 26] (listing COVID-19-related executive orders meant to “slow[] the spread of the 
disease, protect[] the capacity of the State’s medical system, and ensur[e] the continued 
operation of critical sectors”).                                          
This  case  concerns  Minnesota’s  pandemic-related  restrictions  on  youth  sports.  
Organized youth sports activities were first halted between March 27 and May 21, 2020, 

at which point they were permitted to resume with a gradually loosening set of restrictions.  
Compl. ¶¶ 62, 64–70.  By July 1, both indoor and outdoor games and practices were once 
again allowed, and participants were not required to wear masks while playing.  Compl. 
¶¶ 70–71; see Minn. Exec. Order 20-63 ¶ 7(g) (May 27, 2020).1  That was more or less the 
state of affairs for the rest of the summer and early fall.               


1    On July 22, 2020, Governor Walz issued an executive order generally requiring all 
Minnesotans to wear face coverings in indoor businesses and public settings.  See Miltich 
Decl., Ex. 8 (“EO 20-81”) [ECF No. 27-8]; see also Minn. Voters All. v. Walz, __ F. Supp. 
3d __, No. 20-cv-1688 (PJS/ECW), 

 (D. Minn. Oct. 2, 2020) (denying 
a preliminary injunction in a constitutional challenge to EO 20-81).  That order allowed 
individuals to temporarily remove their face coverings “[w]hen participating in organized 
On  November  18,  in  response  to  record  numbers  of  “new  COVID-19  cases, 
hospitalizations and intensive care unit admissions, and deaths[,]” Governor Walz issued 
Executive Order 20-99, which imposed restrictions on a number of personal and business 

activities.  Miltich Decl., Ex. 9 at 1 (“EO 20-99”) [ECF No. 27-9].  As relevant here, that 
order generally required “Organized Youth Sports organizations [to] stop all in-person 
activities—including  practices,  group  workouts,  games,  and  tournaments”—until 
December 18, 2020.  

(g).2  Two more orders in December slightly modified EO 
20-99.  The first extended the ban on most in-person youth sports activities through January 

3,  2021,  while  allowing  certain  “[o]utdoor  workouts,  practices,  training,  [and]  skill-
building” to resume and allowing indoor sports facilities to reopen for individual exercise 
as long as “face coverings [were] worn by all persons at all times.”  Miltich Decl., Ex. 10 
¶¶ 1, 7–8 (“EO 20-103”) [ECF No. 27-10].  The second extended EO 20-103’s restrictions 
through January 10, 2021, but allowed public pools to open up for organized youth sports 

activities.  See Minn. Exec. Order 20-104 ¶¶ 1, 4 (Dec. 23, 2020).        
Finally, on January 6, Governor Walz issued Executive Order 21-01, which is 
currently in effect.  See Miltich Decl., Ex. 11 (“EO 21-01”) [ECF No. 27-11].  That order 


sports . . . while the level of exertion makes it difficult to wear a face covering.”  EO 20-
81 ¶ 10(a).                                                               

2    “Organized Youth Sports,” as used in the executive orders relevant to this case, 
means “any sports activity, where participants are children or adolescents, organized by an 
entity, association, club, or organization,” including “all sports offered by schools (public 
and nonpublic), the Minnesota State High School League, or similar organizations, as well 
as dance, cheerleading, and other sports traditionally offered by supplemental associations 
or organizations.”  

(g)(i).                                        
allows organized youth sports activities to continue so long as they abide by certain 
requirements, two of which matter to this case.  First, entities that provide organized youth 
sports  (and  the  indoor  and  outdoor  facilities  that  support  them)  must  develop  and 

implement a “COVID-19 Preparedness Plan in accordance with applicable guidance for 
youth sports available on [MDH’s] Stay Safe Minnesota website.”  

(g)(ii)–(iv).  
Second, “face coverings must be worn in accordance with applicable guidance for youth 
sports available on the Stay Safe Minnesota website.”3  

(g)(v).    
As of January 14, 2021, MDH had posted a 16-page guidance document concerning 

organized youth and adult sports activities.  Miltich Decl., Ex. 15 [ECF No. 27-15].  For 
purposes of the present motion, Plaintiffs take issue with two components of that guidance.  
The first is the document’s elaboration of the face-covering requirement.  It provides that 
face coverings must generally be “worn by all people at all times” and that “[p]eople are 
not permitted to remove their face coverings during activities that involve a high level of 

exertion.”  

 at 5–6.  People with medical conditions that “make it difficult to tolerate 
wearing a face covering” are exempt from the requirement.  

.  Athletes may 
temporarily remove their face coverings during several specified activities: while engaging 
in “wrestling contact” and gymnastic and cheer routines, during which a mask could 
present a choking hazard; while in the water for water sports; and while playing outside, 

where social distancing is possible.  

.  And when a child wears a helmet that 

3    In a different paragraph, EO 21-01 explicitly abrogated the paragraphs in EO 20-81 
that had allowed individuals to temporarily remove their face coverings during strenuous 
physical exercise.  EO 21-01 ¶ 7(c)(viii)(C).                             
“interferes with wearing a face covering safely or effectively,” the child may wear a “full 
face shield” instead.4  

                                               
The  second  restriction  that  Plaintiffs  challenge  is  the  limit  on  the  number  of 

spectators at youth sporting events.  For practices, the guidance “strongly discourage[s]” 
spectators but allows “[u]p to one spectator per participant.”  

.  For games, the 
guidance urges youth sports organizations to “[s]trongly consider limiting spectators to one 
to two people per participant,” but it imposes no absolute limit as long as they “comply 
with the appropriate venue guidance and capacity limits.”  

.      

                           C                                         
Plaintiff Let Them Play MN is a Minnesota non-profit corporation that “promotes 
youth participation in athletics and activities.”  Compl. ¶¶ 17–18; see Gillman Decl. ¶¶ 1–
2 [ECF No. 12].  Together with a group of unnamed youth sports athletes, coaches, and 
parents, Let Them Play first filed a lawsuit challenging Executive Order 20-99—which 

included the temporary ban on organized youth sports—in December 2020.  See Let Them 
Play MN v. Walz, No. 20-cv-2505 (JRT/HB) (D. Minn.), ECF No. 1.  Plaintiffs moved for 


4    According to one source, Minnesota is one of twenty states that currently require 
athletes to wear face coverings during competition.  National Federation of State High 
School  Associations,  Winter  Sports  Seasons  Guide,  (Feb.  5,  2021), 
https://www.nfhs.org/articles/winter-sports-seasons-guide/;  see,  e.g.,  Ill.  Dep’t  of  Pub. 
Health,  Sports  Safety  Guidance,  https://www.dph.illinois.gov/covid19/community-
guidance/sports-safety-guidance  (last  updated  Feb.  5,  2021).    Another  thirteen  states 
require athletes to wear face coverings except for during competition.  See Winter Sports 
Seasons  Guide,  supra;  see,  e.g.,  Ohio  Dep’t  of  Health,  Director’s  Order  for  Facial 
Coverings  Throughout  the  State  of   Ohio   (July  23,   2020),        
https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Facial-Coverings-
throughout-State-Ohio.pdf.                                                
a  preliminary  injunction  in  that  case,  arguing  that  EO  20-99’s  restrictions  on  social 
gatherings violated their First Amendment rights of free speech and assembly, and Chief 
Judge Tunheim denied their motion.  See Let Them Play MN v. Walz, No. 20-cv-2505 

(JRT/HB), 

, at *8–9 (D. Minn. Dec. 18, 2020).  Soon thereafter, 
Plaintiffs appealed and requested a preliminary injunction pending appeal, which the 
Eighth Circuit denied.  See Order, Let Them Play MN v. Walz, No. 20-3656 (8th Cir. Dec. 
28, 2020).  Plaintiffs then moved to dismiss their appeal and filed a notice of voluntary 
dismissal in the District Court on January 5, 2021.  See No. 20-cv-2505, ECF Nos. 29, 47, 

49.                                                                       
Plaintiffs filed this action three days later.  See generally Compl.  They claim that, 
through Minnesota’s restrictions on youth sports, Defendants—Governor Walz, Attorney 
General Keith Ellison, the Minnesota Department of Health, Commissioner of Health Jan 
Malcolm, and Commissioner Tarek Tomes, Governor Walz’s “designated coordinator of 

youth sports”—are violating their rights to equal protection, procedural due process, and 
substantive  due  process  under  the  Fourteenth  Amendment  to  the  United  States 
Constitution, and to equal protection and procedural due process under the Minnesota 
constitution.  

 ¶¶ 136–84.  In the present motion, Plaintiffs make two overarching 
requests.  First, they seek a preliminary injunction prohibiting Defendants from: 

     1.  enforcing Executive Order 21-01 or any other order policy,  
       practice,  or  procedure  that  disfavors  or  discriminates  
       against youth athletes or youth athletics without permission  
       from the Court;                                               

     2.  collecting  data  or  applying  public  health  terms  or   
       definitions to support predetermined policy choices that      
       disfavor young people and youth sports, or any other group    
       preselected and disfavored by Defendants; and                 

     3.  enforcing any MDH or other State agency rule that lacks     
       statutory  authorization—including  MDH’s  current  face      
       covering and spectator rules for youth sports—or that adds    
       to or contradicts an executive order; or, alternatively,      

     4.  [enforcing]  MDH’s  current  face  covering  and  spectator 
       rules.                                                        

Pl.’s Mot. at 1–2 [ECF No. 10].  Second, Plaintiffs seek an order authorizing them to take 
expedited discovery, which would include up to ten document requests, ten interrogatories, 
and two four-hour depositions of Defendants.  

.                   
                           II                                        
Before considering the merits of Plaintiffs’ motion, it is worth pausing to note two 
jurisdictional questions.  The first is which Defendants, if any, Plaintiffs may sue.  The 
Eleventh Amendment generally bars suits against “an unconsenting State . . . brought in 
federal courts by her own citizens as well as by citizens of another state.”  Pennhurst State 
Sch. & Hosp. v. Halderman, 

 (1984) (quotation omitted).  Under an 
exception to this general rule, recognized in Ex parte Young, 

 (1908), “a 
private party can sue a state officer in his official capacity to enjoin a prospective action 
that would violate federal law.”  281 Care Comm. v. Arneson, 

 (8th Cir. 
2011).  But the Ex parte Young exception only applies if the state official has “‘some 
connection’ with the enforcement of the allegedly unconstitutional law.”  Minn. Voters All., 
__ F. Supp. 3d __, 

, at *6 (citation omitted).             
In their response to Plaintiffs’ motion, Defendants do not argue that any individual 
Defendant lacks the requisite connection to the enforcement of Minnesota’s youth sports 
face-covering  requirements  and  spectator  limits.    Although  Eleventh  Amendment 

immunity is generally considered a matter of subject-matter jurisdiction that a court may 
raise on its own, see Fromm v. Comm’n of Veterans Affs., 

 (8th Cir. 
2000), a court is not required to do so, see Wisc. Dep’t of Corr. v. Schacht, 

  (1998).    Given  the  lack  of  briefing  and  evidence  on  this  question,  as  well  as 
Defendants’ statement that they “will move to dismiss on immunity grounds,” Defs.’ Mem. 

at 44, it makes sense to leave this question for another day.             
There is, however, a second Eleventh Amendment issue.  Plaintiffs claim that 
Defendants have violated the Minnesota constitution’s equal-protection and due-process 
guarantees, though they did not address this claim in their brief.  See Compl. ¶¶ 179–84.  
Under the Eleventh Amendment, a federal court lacks jurisdiction to order state officials 

to “conform their conduct to state law.”  Pennhurst, 

.  If Plaintiffs wish to 
raise these claims, they must do so in state court.  See Minn. Voters All., __ F. Supp. 3d __, 

, at *7 (holding that the court lacked jurisdiction over the plaintiffs’ 
claim that EO 20-81 violated the Minnesota constitution).                 
                          III                                        

Now move to the merits of Plaintiffs’ motion.  A preliminary injunction is an 
“extraordinary remedy.”  Winter v. Nat. Res. Def. Council, Inc., 

 (2008) 
(citation omitted); Watkins Inc. v. Lewis, 

 (8th Cir. 2003).  The Eighth 
Circuit’s familiar Dataphase decision describes the list of considerations applied to decide 
whether to grant preliminary injunctive relief: “(1) the likelihood of the movant’s success 
on the merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) 
the balance between that harm and the harm that the relief would cause to the other litigants; 

and (4) the public interest.”  Lexis-Nexis v. Beer, 

 (D. Minn. 1999) 
(citation omitted).  The core question is whether the equities “so favor[] the movant that 
justice requires the court to intervene to preserve the status quo until the merits are 
determined.”  Dataphase Sys., Inc. v. C L Sys., Inc., 

 (8th Cir. 1981) (en 
banc) (footnote omitted).  “The burden of establishing the four factors lies with the party 

seeking injunctive relief.”  CPI Card Grp., Inc. v. Dwyer, 

 (D. 
Minn. 2018) (citing Watkins, 

).                            
                           A                                         
“While no single factor is determinative, the probability of success factor is the most 
significant.”  Home Instead, Inc. v. Florance, 

 (8th Cir. 2013) (internal 

quotation marks and citations omitted).  Although this factor uses the term “probability,” 
the movant need not show a greater than fifty percent likelihood of success.  Dwyer, 

.  And the movant “need only show likelihood of success on the merits 
on a single cause of action, not every action it asserts[.]”  

  “[T]he absence of a likelihood 
of success on the merits strongly suggests that preliminary injunctive relief should be 

denied.”  CDI Energy Servs., Inc. v. W. River Pumps, Inc., 

 (8th Cir. 
2009).                                                                    
Before addressing Plaintiffs’ constitutional claims, it is necessary to say a word 
about the “lens through which to view [those] claims,” Heights Apartments, LLC v. Walz, 
__ F. Supp. 3d __, No. 20-cv-2051 (NEB/BRT), 

, at *9 (D. Minn. Dec. 
31, 2020), and specifically, the role of the Supreme Court’s decision in Jacobson v. 
Massachusetts, 

 (1905).  The Court in Jacobson upheld the constitutionality of 

a state compulsory-vaccination law enacted to combat a smallpox outbreak.  

 at 12–14, 
39.  In doing so, the Court said the following:                           
     Whatever may be thought of the expediency of this statute, it   
     cannot be affirmed to be, beyond question, in palpable conflict 
     with the Constitution. Nor, in view of the methods employed     
     to stamp out the disease of smallpox, can anyone confidently    
     assert that the means prescribed by the state to that end has no 
     real or substantial relation to the protection of the public health 
     and the public safety.                                          

.  Many courts have concluded that Jacobson provides the standard for reviewing 
all constitutional claims that arise during a public-health crisis.  See, e.g., In re Abbott, 

 (5th Cir. 2020), vacated on other grounds sub nom. Planned Parenthood v. 
Abbott, __ S. Ct. __, No. 20-305, 

 (U.S. Jan. 25, 2021); Lewis v. Walz, 
__ F. Supp. 3d __, No. 20-cv-1212 (DWF/HB), 

, at *4 (D. Minn. Sept. 
30, 2020).  Indeed, early on in the COVID-19 pandemic, the Eighth Circuit endorsed this 
approach, concluding that Jacobson established a “two-part framework” that governs “in 
the context of a public-health crisis”: a state “may implement measures that infringe on 
constitutional rights” unless those measures (1) have “no real and substantial relation” to 
public health, safety or morals or (2) are, “beyond all question, a plain, palpable invasion 
of rights secured by the fundamental law[.]”  In re Rutledge, 

, 1027–28 (8th 
Cir. 2020) (quoting Jacobson, 

).  In Rutledge, the Eighth Circuit held that, 
by failing to apply the Jacobson framework, a district court had “abused its discretion” and 
“produced a patently erroneous result.”  Id. at 1028.                     
The Supreme Court cast doubt on Jacobson’s significance in November 2020 when 

it decided Roman Catholic Diocese of Brooklyn v. Cuomo, 

 (2020).  The Court 
applied strict scrutiny in that case to evaluate the plaintiffs’ claims that state COVID-19-
related restrictions on attendance at religious services violated their rights under the Free 
Exercise Clause of the First Amendment, 

 at 66–67, and it never discussed or cited 
Jacobson.  See 

 (Gorsuch, J., concurring) (arguing that courts had “mistaken [the] 

modest decision in Jacobson for a towering authority that overshadows the Constitution 
during a pandemic”).  The majority did not explicitly reject or overturn Jacobson, and the 
Eighth Circuit has not revisited the issue after Roman Catholic Diocese of Brooklyn.5 
For purposes of this case, it is not necessary to decide between Jacobson and the 
“ordinary constitutional analysis.”  Heights Apartments, __ F. Supp. 3d __, 

, at *11.  First, as discussed below, the rational-basis standard likely governs 
Plaintiffs’ equal-protection claims.  It is far from clear that the Court in Jacobson did 
anything other than apply rational-basis review, particularly when one considers that the 
decision “pre-dated the modern tiers of scrutiny” applicable to such claims.  Roman 
Catholic Diocese of Brooklyn, 

 (Gorsuch, J., concurring).  Second, if 


5    Just three days ago, the Supreme Court granted in part another application for 
injunctive relief against state limitations on indoor worship services in South Bay United 
Pentecostal Church v. Newsom, __ S. Ct. __, No. 20A136 (20-746), 

 
(U.S. Feb. 5, 2021).  That case produced four separate signed opinions, none of which cited 
Jacobson.                                                                 
Jacobson does establish a different standard of review that applies only during a public-
health  crisis,  that  standard  would  certainly  be  more  deferential  than  the  typical 
constitutional analysis.  See Lewis, __ F. Supp. 3d __, 

, at *4 n.5.  

Because, as discussed below, Plaintiffs are not likely to succeed under normally applicable 
constitutional standards, they would necessarily be unlikely to succeed under Jacobson.  
With that background in mind, it is time to turn to Plaintiffs’ specific claims. 
                           1                                         
Start  with  the  equal-protection  claims.    “The  Equal  Protection  Clause  of  the 

Fourteenth Amendment commands that no [s]tate shall ‘deny to any person within its 
jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons 
similarly situated should be treated alike.”  City of Cleburne v. Cleburne Living Ctr., 

 (1985) (citing Plyler v. Doe, 

 (1982)).  The “first step” 
when  evaluating  an  equal-protection  claim  is  to  decide  “whether  the  plaintiff  has 

demonstrated that she was treated differently than others who were similarly situated to 
her.”  Adam & Eve Jonesboro, LLC v. Perrin, 

 (8th Cir. 2019) (quoting 
In re Kemp, 

 (8th Cir. 2018)).  Once a plaintiff clears that “threshold,” 
the next step is to apply the appropriate level of scrutiny to the challenged law.  Id.; see 
True v. Nebraska, 

, 683–84 (8th Cir. 2010).                   

                           a                                         
To succeed at the first step, Plaintiffs must show that they are similarly situated to 
another, more favorably treated group “in all relevant respects.”  Carter v. Arkansas, 

 (8th Cir. 2004) (quoting Bills v. Dahm, 

 (8th Cir. 
1994)); see Satanic Temple v. City of Belle Plaine, 

, 962 (D. Minn. 
2020).  A court must typically “look to the end or purpose of the legislation in order to 
determine whether persons are similarly situated in terms of that governmental system.”  

Gilmore v. Cnty. of Douglas, 

 (8th Cir. 2005) (quoting R. Rotunda, J. 
Nowak & J. Young, Treatise on Constitutional Law: Substance and Procedure § 18.2 (3d 
ed. 1999)).  Plaintiffs argue that youth sports have been treated less favorably than “adult 
sports and other non-sport activities.”  Pls.’ Mem. at 39.  Defendants respond that organized 
youth sports differ from those other groups in relevant respects.  Defs.’ Mem. at 16–18. 

Defendants have the better argument.  First, the record does not support Plaintiffs’ 
assertion that EO 21-01 and MDH’s related guidance treat youth sports less favorably than 
“adult sports” across the board.  On the contrary, EO 21-01 subjects “Organized Adult 
Sports” to the same restrictions as organized youth sports; organizations and facilities must 
implement a “COVID-19 Preparedness Plan,” and participants must generally wear face 

coverings at all times.  EO 21-01 ¶ 7(h).  And the MDH guidance document appears to 
apply the same face-covering rules and spectator limits without distinguishing between 
youth and adult sports.  See Miltich Decl., Ex. 15 at 5–8.                
When Plaintiffs argue that EO 21-01 treats “adult sports” more favorably, they seem 
to refer to the fact that the order exempts “[p]rofessional sports” and “[c]ollegiate sports” 

from the requirements that generally apply to “Organized Adult Sports.”  EO 21-01 
¶ 7(h)(i)(A)–(B); see Compl. ¶ 76 (discussing EO 20-99).  The record shows, however, that 
professional and collegiate sports are not similarly situated to youth sports in all relevant 
respects.  Specifically, professional and collegiate sports organizations are able to exercise 
significant, centralized control over athletes’ and coaches’ behavior, allowing them to 
“enforce isolation requirements” and ensure frequent testing.  Danila Decl. ¶¶ 24–25.  
Professional and collegiate groups also have greater economic resources at their disposal, 

many employing medical personnel that are dedicated to monitoring the health of their 
players and staff.  Id. ¶ 25.  Youth sports, by contrast, are simply not in a position to impose 
similar internal restrictions.  See id. ¶¶ 24–25.  If the goal is to use behavioral changes to 
control the spread of COVID-19, see Gilmore, 

, these differences are 
relevant.  Cf. Carter, 

 (concluding that “public school employees” and 

“state employees” were not similarly situated in a lawsuit challenging the amount of 
employer  health-insurance  contributions  because  “the  two  groups  ha[d]  different 
employers”).                                                              
The result is the same for the “other non-sport activities” that Plaintiffs’ argue are 
treated more favorably than youth sports.  First of all, Plaintiffs do not identify what these 

activities are.  But even setting that aside, there is no reason to believe that the other 
activities are similarly situated to youth sports.  That’s because sports, by their nature, 
almost always involve behaviors and settings that increase the risk of spreading COVID-
19—namely, multiple persons gathering closely, combined with “higher levels of exertion 
and exhalation.”  Danila Decl. ¶ 20.  Any non-sport activity that did not share these crucial 

characteristics would differ from youth sports in relevant respects.      
                           b                                         
If youth sports were similarly situated to professional and collegiate sports, the next 
step  would  be  to  decide  the  applicable  degree  of  scrutiny  with  which  to  examine 
Defendants’ policies.  “Where a law neither implicates a fundamental right nor involves a 
suspect  or  quasi-suspect  classification,”  courts  apply  the  rational-basis  standard.  
Gallagher v. City of Clayton, 

 (8th Cir. 2012).        

Plaintiffs argue that heightened scrutiny is warranted because this case implicates 
fundamental rights.  See Pls.’ Mem. at 32–34.6  The problem is that Plaintiffs have not 
identified with any specificity what fundamental right they believe is at play here.  “A 
fundamental right is one which is, ‘objectively, deeply rooted in this Nation’s history and 
tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice 

would exist if [it] were sacrificed.’”  Gallagher, 

 (quoting Washington v. 
Glucksberg, 

, 720–21 (1997)).  Plaintiffs refer at one point to a “right to 
engage in activities necessary for their physical and mental health,” Pls.’ Mem. at 32, but 
more frequently they use broad phrases like “basic liberty interests,” id. at 33.  Similarly, 
at the hearing on this motion, Plaintiffs’ counsel suggested that Plaintiffs are asserting a 

general right to protection from harmful government action.  Given the nature of the facts 
and legal arguments in this case, however, Plaintiffs really seem to be asserting a more 
specific right: the right to participate, without restriction, in organized youth sports. 
Plaintiffs  provide  no  authority  suggesting  that  such  a  right  (in  the  relevant 
constitutional sense) exists.  They rely principally on Ramos v. Town of Vernon, in which 


6    Plaintiffs also hint, but do not directly argue, that EO 21-01 and the related MDH 
guidance are subject to heightened scrutiny because they discriminate against younger 
athletes  in  favor  of  older  ones.    Age,  however,  is  not  a  suspect  or  quasi-suspect 
classification,  so  differential  treatment  based  on  age  does  not  automatically  trigger 
heightened scrutiny.  See City of Cleburne, 473 U.S. at 441–42.           
the Second Circuit applied intermediate scrutiny to a juvenile curfew ordinance.  

 (2d Cir. 2003).  But Ramos involved a constitutionally recognized fundamental 
right to travel.  See 

  Similarly, all of the other cases that Plaintiffs cite involved either 

recognized constitutional rights or suspect classifications.  See Lawrence v. Texas, 

 (2003) (addressing the right to engage in private sexual acts in the home); Wengler 
v. Druggists Mut. Ins. Co., 

 (1980) (applying intermediate scrutiny to a 
gender-based classification); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & 
Mary, 

, 534–35 (1925) (addressing a compulsory-public-education law that 

implicated parents’ rights to “direct the upbringing and education of children under their 
control”); White v. Smith, 

 (8th Cir. 2012) (addressing a criminal 
defendant’s “liberty interest . . . in obtaining fair criminal proceedings” (citation omitted)); 
Johnson v. City of Opelousas, 

, 1071–72 (5th Cir. 1981) (addressing juvenile 
curfew ordinances that implicated the First Amendment ); Townes v. City of St. Louis, 

 (E.D. Mo. 1996) (assuming that the Constitution protected a right to 
intrastate travel and applying intermediate scrutiny to an ordinance closing a street); cf. 
City  of  Cleburne,  473 U.S.  at  446–48  (applying  rational-basis  review).    There  is  no 
reasonable connection between these cases and Plaintiffs’ claims.         
                           c                                         

In the absence of a suspect classification or a fundamental right, the rational-basis 
standard applies.  Under that standard, a challenged state law will be upheld as long as it is 
“rationally related to a legitimate government interest.”  Gallagher, 

.  
Plaintiffs do not seem to dispute that Minnesota has a legitimate interest in controlling the 
spread of COVID-19, and it is hard to see how they could.  See Rutledge, 

; 
Heights Apartments, __ F. Supp. 3d __, 

, at *12; Let Them Play MN, 

, at *6; see also, e.g., Roman Catholic Diocese of Brooklyn, 

; Vill. of Orland Park v. Pritzker, 

, 886 (N.D. Ill. 2020).  Instead, 
Plaintiffs argue that Minnesota’s youth-sports restrictions are arbitrary and irrational in 
relation to that interest.  See Pls.’ Mem. at 39–40.                      
Rational-basis review sets a low bar.  The challenged law is presumptively valid, 
and a plaintiff can only overcome that presumption by showing that no “reasonably 

conceivable state of facts” could support the law.  F.C.C. v. Beach Commc’ns, Inc., 

,  313–15  (1993).    A  challenged  law  may  survive  even  if  it  is  both 
overinclusive  and  underinclusive  in  advancing  the  asserted  interest,  see  Gallagher, 

 (citing Vance v. Bradley, 

 (1979)), and even if it is based 
on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns, 

.  Moreover, the state decisionmakers’ “subjective motives” for imposing 
the challenged restrictions are “irrelevant for constitutional purposes.”  Barket, Levy & 
Fine, Inc. v. St. Louis Thermal Energy Corp., 

 (8th Cir. 1994) (citations 
omitted).  In other words, under these long-settled principles, it doesn’t matter whether 
Plaintiffs have the better policy argument.  The question isn’t whether the state has made 

the best decision.  The question the law requires us to answer is whether the challenged 
policies have some rational basis.                                        
Under this standard, Plaintiffs have not shown that Minnesota’s face-covering and 
spectator requirements likely violate the Equal Protection Clause.  In the preamble to EO 
21-01, Governor Walz acknowledged that the state was facing a “challenging balancing 
act.”  EO 21-01 at 2.  He concluded that restrictions like the ones that Plaintiffs challenge 
were necessary because lifting the temporary ban on certain activities, like youth sports, 

would increase the risk of COVID-19 transmission.  

  He described his reasoning for 
that conclusion in some detail:                                           
     [S]ome  settings  continue  to  pose  more  risks  than  others.  
     Indoor  activities  pose  higher  risks  than  outdoor  activities.  
     Strenuous  activities  resulting  in  increased  respiration  pose 
     higher risk than sedentary activities.  Unpredictable settings are 
     riskier than more predictable and controlled settings.  Settings 
     conducive to prolonged contact provide more opportunity for     
     transmission  than  settings  featuring  more  transitory       
     interactions.                                                   

  Based on the whole record in this case, it is perfectly reasonable to conclude that youth 
sports—which often involve sustained close contact, physical exertion, and large groups 
of spectators—would pose a risk of transmission.  According to Defendants’ evidence, 
sports have been associated with multiple COVID-19 outbreaks throughout the country.  
Danila Decl. ¶¶ 21–22, Exs. 1–5 [ECF Nos. 28-1 through 28-5].  In Minnesota, MDH has 
“traced at least 334 outbreaks and 10,207 positive COVID-19 cases to sports activities” 
and found that “[s]ports-related cases are more than twice as prevalent among high school-
age children as any other age group[.]”7  Id. ¶ 23.  It is also reasonable to conclude that the 

7    Plaintiffs argue that Defendants have arbitrarily applied inconsistent definitions of 
“outbreak” to sports-related and non-sports-related activites in order to systematically 
disfavor sports.  See Pls.’ Mem. at 14–16.  There are two problems with this argument.  
First, it appears that MDH applies one “outbreak” definition to “sports” in general, not to 
youth sports in particular.  See Diehl Decl., Ex. U at 4 [ECF No. 16-16].  Second, 
Defendants  have  provided  a  rational  basis  for  their  approach—specifically,  that  the 
threshold number of positive cases required for an outbreak is lower for sports because 
face-covering and spectator restrictions would lessen this risk.  Social distancing is a basic 
recommendation for limiting the spread of COVID-19.  See id. ¶ 6.  The American 
Academy of Pediatrics has specifically recommended that children wear face coverings 

while playing sports, id. ¶ 28, Ex. 12 at 4 [ECF No. 28-12], and a recent nationwide survey 
found that the use of face coverings was associated with decreased COVID-19 infections 
in high-school athletes, at least for indoor sports, id. ¶ 30, Ex. 14 at 2 [ECF No. 28-14].  
Numerous courts in this District and around the country have concluded that similar—and 
some more severe—restrictions satisfied the rational-basis standard.  See Lewis, __ F. 

Supp. 3d __, 

, at *5 (dismissing an equal-protection challenge to 
executive orders limiting the size of in-person gatherings); see also, e.g., Big Tyme Invs., 
L.L.C. v. Edwards, __ F.3d __, Nos. 20-30526, 20-30537, 

, at *9 (5th Cir. 
Jan.  13,  2021)  (upholding  an  executive  order  prohibiting  on-site  food  and  alcohol 
consumption at bars); League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 

, 127–30 (6th Cir. 2020) (staying a lower court injunction against an 
executive order closing indoor fitness facilities); Talleywhacker, Inc. v. Cooper, 

, 538–540 (E.D.N.C. 2020) (upholding an executive order closing various 
entertainment businesses, including dance clubs and music venues).        
To be sure, Plaintiffs present another side of the story with their evidence.  They 

have submitted affidavits from multiple individual physicians opining that it is not safe for 


sports typically involve “frequent in-person interactions with a recurring group of the same 
people,” which makes it “much more likely that two positive COVID-19 tests are related” 
as compared to other settings.  Danila Decl. ¶ 19.                        
children to wear masks while playing sports.  See Arthur Decl. ¶¶ 18–20 [ECF No. 13]; 
Alm Decl. ¶¶ 17–30 [ECF No. 14]; Waibel Decl. ¶¶ 14–23 [ECF No. 24]; Poirier Decl. 
¶¶ 15–18 [ECF No. 25].8  The concern, according to these sources, is that masks could 

hamper an athlete’s breathing, leading to dizziness, hyperventilation, and other negative 
effects.  E.g., Alm Decl. ¶¶ 19–22; see Gilman Decl. ¶ 6 [ECF No. 12].  Or they could 
obstruct an athlete’s vision, increasing the risk of collisions and related concussive injuries.  
E.g., Poirier Decl. ¶¶ 15–18.  Plaintiffs provide anecdotal evidence, including videos, to 
show that some of these injuries may already have occurred.  See Peterson Decl., Ex. 1 

[ECF No. 17]; Trost Decl. [ECF No. 18].  Plaintiffs also emphasize the significant physical 
and emotional benefits of participation in youth sports, and with their Complaint, they 
included a summary of a Wisconsin study finding that “participation in sports is not 
associated with an increased risk of COVID-19[.]”  Compl. Ex. E at 3 [ECF No. 1-5].  All 
of this evidence shows that Plaintiffs have a reasonable, good-faith policy disagreement 

with  Minnesota’s  approach  to  combating  COVID-19  in  youth  sports.    But  their 
disagreement is ultimately a political one; it does not show that Defendants likely violated 
the Equal Protection Clause.  See S. Bay United Pentecostal Church v. Newsom, 

 (2020) (Roberts, C.J., concurring) (“The precise question of when restrictions 
on particular social activities should be lifted during the pandemic is a dynamic and fact-

intensive matter subject to reasonable disagreement.  Our Constitution principally entrusts 


8    Plaintiffs improperly filed some of these affidavits outside of the ordered briefing 
schedule.  See ECF No. 21; see generally Local Rule 7.1.  All of Plaintiffs’ evidence has 
nonetheless been considered.                                              
the safety and health of the people to the politically accountable officials of the [s]tates to 
guard and protect.” (internal quotation marks, alterations, and citation omitted)).9 
                           2                                         

Now turn to Plaintiffs’ claim that Defendants violated their right to procedural due 
process.  To succeed on this claim, Plaintiffs must show two things: “(1) the existence of a 
constitutionally protected liberty or property interest; and (2) that [Defendants] deprived 
[them] of that interest without constitutionally adequate process.”  Raymond v. Bd. of 
Regents of Univ. of Minn., 

 (D. Minn. 2015) (citations omitted).  

Plaintiffs essentially argue that it violates due process for Governor Walz to require them 
to follow the guidance released on MDH’s website because that guidance exceeds MDH’s 
statutory authority and is being continually updated without following statutory rulemaking 
procedures.  See Pls.’ Mem. at 34–38.                                     
Plaintiffs are not likely to succeed on their procedural-due-process claim.  First, just 

as Plaintiffs do not identify a fundamental right for purposes of their equal-protection and 
substantive-due-process claims, they have not identified a protected liberty or property 
interest here.  “Protected liberty interests ‘may arise from two sources—the Due Process 
Clause itself and the laws of the States.”  Senty-Haugen v. Goodno, 

 (8th 
Cir. 2006) (quoting Kentucky Dep’t of Corr. v. Thompson, 

 (1989)).  


9    Because Plaintiffs have identified no fundamental right, and because the challenged 
restrictions likely satisfy the rational-basis standard, Plaintiffs are not likely to succeed on 
the merits of their substantive-due-process claim.  See Schmidt v. Ramsey, 

 (8th Cir. 2017) (explaining that a “rational basis for equal protection purposes also 
satisfies substantive due process analysis” (internal quotation marks and citation omitted)); 
accord Minnesota v. Clover Leaf Creamery Co., 

, 470 n.12 (1981). 
Although an “independent source” like state law must create the underlying substantive 
interest, “federal constitutional law determines whether the interest rises to the level of 
entitlement protected by the Due Process Clause.”  Patel v. City of Sauk Centre, 

 (D. Minn. 2007) (quoting Memphis Light, Gas & Water Div. v. Craft, 

 (1978)) (internal quotation marks omitted).  As noted above, Plaintiffs refer 
generally to a “right to engage in activities necessary for their mental and physical health,” 
Pls.’ Mem. at 32, but they do not identify any state-law sources creating such a right.  
Moreover, what they really seem to assert are rights to participate in organized youth sports 

without a face covering and to have more than one spectator present at youth sporting 
events.  Plaintiffs do not identify any authority suggesting that the federal Due Process 
Clause protects those rights.                                             
Second, if Plaintiffs had identified a constitutionally protected interest, they have 
not shown that they were likely deprived of that interest without adequate process.  All of 

Plaintiffs’  arguments  are  focused  on  the  propriety  of  Minnesota’s  face-covering 
requirements and spectator rules under Minnesota state law.  See Pls.’ Mem. at 34–38.  But 
violations of state law, standing alone, do not ordinarily give rise to a federal due-process 
violation.  See Holloway v. Reeves, 

 (8th Cir. 2002).  What Plaintiffs 
seek, in practical effect, is an injunction forcing state officials to comply with state law.  

As noted above, the Eleventh Amendment bars such injunctions.  Greene v. Dayton, 

 (8th Cir. 2015); see Pennhurst, 

; Minn. Voters All., __ F. 
Supp. 3d __, 

, at *7.  It is therefore unsurprising that other courts 
addressing challenges to COVID-19 restrictions have rejected procedural-due-process 
claims premised on state-law violations.  See, e.g., Stewart v. Justice, __ F. Supp. 3d __, 
Civ. Action No. 3:20-611, 

, at *2 & n.2 (S.D. W. Va. Nov. 24, 2020); 
Murphy v. Lamont, No. 3:20-CV-0694 (JCH), 

, at *11 (D. Conn. Aug. 

3, 2020).                                                                 
There is also another, more fundamental flaw in Plaintiffs’ due-process claim.  The 
Due Process Clause’s classic procedural guarantees of notice and an opportunity to be 
heard only come into play “when the government makes an individualized determination, 
not when the government commits a legislative act equally affecting all those similarly 

situated.”  Foster v. Hughes, 

 (8th Cir. 1992) (citations omitted).  The 
idea behind this rule is that “the rights of an individual affected by a law of general 
applicability ‘are protected in the only way that they can be in a complex society, by [the 
affected  individual’s]  power,  immediate  or  remote,  over  those  who  make  the 
rule.’”  Hartman v. Acton, __ F. Supp. 3d __, No. 2:20-CV-1952, 

, at *8 

(S.D. Ohio Apr. 21, 2020) (quoting Bi-Metallic Inv. Co. v. State Bd. of Equalization, 

 (1915)).  It does not matter whether the government actor in question is 
formally a part of the legislative or executive branch; what matters is whether the action 
taken was “legislative”—i.e., whether it produced generally applicable “policy-type rules 
or standards”—or whether it was “adjudicative”—i.e., whether it “adjudicate[d] disputed 

facts in particular cases.”  United States v. Fla. E. Coast Ry. Co., 

 (1973) 
(acknowledging that an administrative agency can engage in either type of action).  This 
basic  distinction  between  legislative  and  adjudicative  acts  dates  back  more  than  a 
century.  See Bi-Metallic Inv. Co., 

; Londoner v. Denver, 

 
(1908); 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance 
& Procedure § 17.8(c) (May 2020 Update).                                  
Plaintiffs do not argue that Minnesota’s face-covering requirements and spectator 

limits are anything other than legislative in character.  Indeed, Plaintiffs and Defendants 
conceded at the hearing that the restrictions are generally applicable.  So, as long as 
Defendants make the policies available to the public, as they undisputedly have done, no 
more process is required.  See, e.g., Bimber’s Delwood, Inc. v. James, __ F. Supp. 3d __, 
No. 20-CV-1043S, 

, at *14–15 (W.D.N.Y. Oct. 21, 2020); Six v. 

Newsom, 

, 1073 (C.D. Cal. 2020); Hernandez v. Grisham, __ F. Supp. 
3d __, No. CIV 20-0942 JB/GBW, 

, at *52 (D.N.M. Dec. 18, 2020); 
Hartman, 

, at *7–8; Hund v. Cuomo, __ F. Supp. 3d __, No. 20-cv-1176 
(JLS), 

, at *11 (W.D.N.Y. Nov. 13, 2020).  For all these reasons, 
Plaintiffs are not likely to succeed on the merits of their claims, which “strongly suggests” 

that their motion should be denied.  CDI Energy Servs., Inc., 

. 
                           B                                         
The second Dataphase factor is irreparable harm, which “occurs when a party has 
no adequate remedy at law, typically because its injuries cannot be fully compensated 
through an award of damages.”  Gen. Motors Corp. v. Harry Brown’s, LLC, 

 (8th Cir. 2009).  The harm must be “likely in the absence of an injunction,” Winter, 

, “great[,] and of such imminence that there is a clear and present need for 
equitable relief,”  Iowa Utils. Bd. v. FCC, 

, 425 (8th Cir. 1996).  A plaintiff 
must show more than a future risk of irreparable harm; “[t]here must be a clear showing of 
immediate irreparable injury.”  Berkley Risk Adm’rs Co. v. Accident Fund Holdings Inc., 
No. 16-cv-2671 (DSD/KMM), 

, at *4 (D. Minn. Aug. 24, 2016) (internal 
quotation  marks  and  citation  omitted).    “Failure  to  show  irreparable  harm  is  an 

independently sufficient ground upon which to deny a preliminary injunction.”  Watkins, 
Inc., 

; see also Gamble v. Minn. State Indus., No. 16-cv-2720 (JRT/KMM), 

, at *2 (D. Minn. Dec. 1, 2017) (collecting cases).        
Plaintiffs’ only argument on this point is that their likelihood of success on the 
merits of their constitutional claims establishes irreparable harm.  Pl.’s Mem. at 40 (citing 

Phelps-Roper v. Nixon, 

 (8th Cir. 2008), overruled on other grounds by 
Phelps-Roper v. City of Manchester, 

 (8th Cir. 2012) (en banc)).  There are 
three problems with this argument.  First, Plaintiffs have not shown a likelihood of success 
on the merits of their claims.  See Powell v. Noble, 

 (8th Cir. 2015).  
Second, all of the cases Plaintiffs cite for this theory of irreparable harm involved likely 

First Amendment violations.  Although the Supreme Court has recognized that “[t]he loss 
of  First  Amendment  freedoms,  for  even  minimal  periods  of  time,  unquestionably 
constitutes  irreparable  injury,”  Elrod  v.  Burns,  

  (1976)  (plurality 
opinion), Plaintiffs do not assert a First Amendment claim here, and it is not at all clear 
that the principle from Elrod applies in other constitutional contexts.  See Plastino v. 

Koster, No. 4:12-CV-1316 CAS, 

, at *3 & n.5 (E.D. Mo. Apr. 24, 2013) 
(concluding that temporary violations of the Second Amendment and the Equal Protection 
Clause would not automatically constitute irreparable harm); cf. Munt v. Larson, No. 
15-cv-582 (SRN/SER), 

, at *12 n.18 (D. Minn. Sept. 23, 2015) (“[T]he 
deprivation of constitutional rights related to the Eighth Amendment and medical treatment 
does not necessarily constitute irreparable harm[.]”).  Third, even in the First Amendment 
context, the Supreme Court has stated that “a preliminary injunction does not follow as a 

matter of course from a plaintiff’s showing of a likelihood of success on the merits.”  
Benisek v. Lamone, 

, 1943–44 (2018) (per curiam) (assuming that plaintiffs 
were  likely  to  succeed  on  the  merits  a  First  Amendment  challenge  to  partisan 
gerrymandering but reversing a preliminary injunction based on the balance of the equities 
and the public interest).                                                 

If Plaintiffs had made an independent argument for irreparable harm, they would 
have faced a difficult burden.  Irreparable harm must be both imminent and attributable to 
the defendant’s conduct.  See Iowa Utils. Bd., 109 F.3d at 425; Gen. Motors Corp., 590 F. 
Supp. 2d at 1137.  As noted above, Plaintiffs have presented evidence that wearing face 
coverings may cause some youth athletes to suffer physical injuries.  But that generalized 

risk does not show that the specific Plaintiffs in this case are likely to suffer immediate 
injuries in the absence of an injunction and that those injuries would be attributable to 
Defendants’ face-covering requirements, as opposed to some other risk inherent in playing 
youth sports.  Moreover, it is not clear on this record that an injunction against Defendants 
would eliminate whatever increased risk of injury flows from wearing face coverings.  

That’s because such an order would not prevent private sports facilities from imposing and 
enforcing their own face-covering requirements.10  See Shelton v. City of Springfield, No. 

10   Here,  it  is  worth  noting  that  the  President  recently  issued  an  executive  order 
requiring federal agencies to “encourage widespread mask-wearing” and to engage with 
6:20-cv-3258-MDH, 

, at *3 (W.D. Mo. Sept. 2, 2020) (denying a request 
for a temporary restraining order against a mask ordinance in part because such an order 
“would not prevent business[es] and churches from adopting their own facial covering 

requirements”).  In short, Plaintiffs have not shown that they will suffer irreparable harm 
in the absence of the requested relief.                                   
                           C                                         
The last two factors to consider are the balance of the relative harms and the public 
interest.  For practical purposes, these factors “merge” when a plaintiff seeks injunctive 

relief against the government.  Nken v. Holder, 

 (2009); see Angelica C. 
v. Immigr. & Customs Enf’t, No. 20-cv-913 (NEB/ECW), 

, at *17 (D. 
Minn. June 5, 2020), report and recommendation adopted, 

 (D. Minn. 
June 23, 2020).  Once again, Plaintiffs argue only that their likelihood of success on the 
merits establishes that the equities and the public interest weigh in their favor.  Pls.’ Mem. 

at 40–41.  Defendants, for their part, argue that the requested injunction “would deal a 
major blow to Minnesota’s efforts to stem the spread of COVID-19.”  Defs.’ Mem. at 35. 
Plaintiffs have not shown that the equities or the public interest favor the injunction 
they  seek.    As  discussed  above,  Plaintiffs  rely  only  on  cases  involving  the  First 
Amendment, and in any event, they are not likely to succeed on the merits.  Moreover, 

Defendants and the public both have a substantial interest in combatting the spread of 
COVID-19.    In  an  attempt  to  do  this,  Defendants  have  adopted  measures  that  are 

“business . . . and other community leaders” to achieve that result.  Miltich Decl. Ex. 12 at 
3 [ECF 27-12].                                                            
undisputedly recommended by public-health experts and that are supported by a rational 
basis.  As with all public-policy decisions, those measures may come with disadvantages 
and risks, but Defendants have concluded that the benefits outweigh the drawbacks.  A 

federal court is no better positioned to second-guess those judgments when balancing the 
equities than when evaluating the merits of an equal-protection claim.  See Minn. Voters 
Alliance, __ F. Supp. 3d __, 

, at *13; see also Talleywhacker, Inc., 465 F. 
Supp. 3d at 543 (concluding that the public interest weighed against an injunction “where 
defendant ha[d] taken intricate steps to craft reopening policies to balance the public health 

and economic issues associated with the COVID-19 pandemic”).  Once again, Plaintiffs’ 
remedy, if any, lies with Minnesota’s political processes.  Because none of the Dataphase 
factors  weigh  in  favor  of  injunctive  relief  here,  Plaintiffs’  request  for  a  preliminary 
injunction will be denied.                                                
                          IV                                         

Finally,  along  with  their  request  for  a  preliminary  injunction,  Plaintiffs  seek 
permission to conduct expedited discovery.  Specifically, Plaintiffs would like to serve up 
to ten document requests and ten interrogatories on Defendants and schedule two four-hour 
depositions of Defendants.  ECF No. 10 at 2.  In their brief, Plaintiffs argue that “[t]he 
freedom of Minnesota kids to move, be active, and improve their mental health free from 

unlawful and discriminatory intrusion warrants expedited discovery,” Pls.’ Mem. at 42, but 
they do not say what information they seek.  Defendants respond that Plaintiffs have not 
shown  good  cause  for  expedited  discovery  and  that  their  requests  would  be  unduly 
burdensome.  Defs.’ Mem. at 41–44.                                        
The general rule is that “[a] party may not seek discovery from any source before 
the parties have conferred as required by Rule 26(f).”  Fed. R. Civ. P. 26(d)(1).  Some 
courts,  however,  have  found  that  expedited  discovery  is  “appropriate  in  limited 

circumstances and for limited rationales.” Midwest Sign & Screen Printing Supply Co. v. 
Dalpe, 

 (D. Minn. 2019) (quoting ALARIS Grp., Inc. v. 
Disability Mgmt. Network, Inc., No. 12-cv-446 (RHK/LIB), 

, at *2 (D. 
Minn. May 30, 2012)).  The party seeking discovery must typically show “good cause”—
i.e., that “the need for expedited discovery . . . outweighs [the] prejudice to the responding 

party.”  Nilfisk, Inc. v. Liss, No. 17-cv-1902 (WMW/FLN), 

, at *7 (D. 
Minn. June 15, 2017) (quoting Oglala Sioux Tribe v. Van Hunnik, 

 
(D.S.D. 2014)).  In determining whether to grant expedited discovery, courts frequently 
consider: “(1) whether a preliminary injunction is pending; (2) the breadth of discovery 
requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the 

defendants to comply with the requests; and (5) how far in advance of the typical discovery 
process the request was made.”   ALARIS Grp., 

, at *2 (quoting 
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 

 (D.D.C. 2006)).                                                      
In this case, there is no need to consider the potential prejudice to Defendants, 

because Plaintiffs have not shown that there is any need for expedited discovery.  First, 
although Plaintiffs combined their request for expedited discovery with their request for a 
preliminary injunction, they have not shown that the two are related.  A common reason to 
grant expedited discovery is to ensure that the record is adequately developed in advance 
of a preliminary-injunction hearing.  See Nilfisk, Inc., 

, at *7; Edudata 
Corp. v. Sci. Computs., Inc., 

 (D. Minn. 1984).  That is not a 
concern here.  Plaintiffs have never argued that they needed discovery before they could 

file a “well-supported [preliminary] injunction motion,” Nilfisk, Inc., 

, 
at  *7,  and  the  Parties  have  been  able  to  create  a  “relatively  robust  record  without 
discovery.”  Dalpe, 

.                              
Second,  Plaintiffs’  discovery  requests  are  extremely  broad.    The  purpose  of 
expedited discovery is to allow a party to obtain specific, limited, and identifiable pieces 

of information, particularly when there is some risk of spoliation or when the suit cannot 
reasonably proceed without the information.  See, e.g., Council on Am.-Islamic Relations—
Minn. v. Atlas Aegis, LLC, No. 20-cv-2195 (NEB/BRT), 

, at *6 (D. 
Minn. Oct. 29, 2020) (granting expedited discovery to allow plaintiffs to obtain names and 
contact information for ten John Doe defendants); see also 8A Richard L. Marcus, Federal 

Practice and Procedure § 2046.1 n.10 (3d ed. Oct. 2020 Update) (collecting cases).  There 
is no apparent risk of spoliation here.  Plaintiffs have made no attempt to limit the scope of 
topics to be explored in their proposed discovery.  And they have not said which specific 
Defendants they seek to depose.  Without guardrails like these, expedited discovery in this 
case would undoubtedly exceed its intended scope.                         

Finally,  without  any  indication  of  what  the  Plaintiffs  hope  to  discover,  it  is 
impossible to evaluate their purpose in seeking discovery.  Instead, given the broad and 
open-ended nature of the Plaintiffs’ requests, the most natural conclusion is that they 
simply wish to start discovery ahead of schedule.  That’s not what expedited discovery is 
for.  Plaintiffs’ request for expedited discovery will therefore be denied. 

Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS  HEREBY  ORDERED  THAT  Plaintiffs’  Motion  for  Preliminary  Injunction  and 
Expedited Discovery [ECF No. 10] is DENIED.                               
       LET JUDGMENT BE ENTERED ACCORDINGLY.                          



Dated:  February 8, 2021      s/ Eric C. Tostrud                          
                         Eric C. Tostrud                             
                         United States District Court