Best Supp - State Defendants' Answering Brief - Best Supplement

20-17362
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEST SUPPLEMENT GUIDE, LLC and

SEAN COVELL,
Plaintiffs-Appellants,
v.
GAVIN NEWSOM, in his official capacity

as the Governor of California, et al.,
Defendants-Appellees.
On Appeal from the United States District Court

for the Eastern District of California
No. 2:20-cv-00965-JAM-CKD
The Honorable John A. Mendez, District Judge
ANSWERING BRIEF OF STATE

DEFENDANTS-APPELLEES
ROB BONTA *JOHN W. KILLEEN
Attorney General of California Deputy Attorney General
THOMAS S. PATTERSON State Bar No. 258395
Senior Assistant Attorney General 1300 I Street, Suite 125
BENJAMIN M. GLICKMAN P.O. Box 944255
Supervising Deputy Attorney Sacramento, CA 94244-2550
General Telephone: (916) 210-6045
ANDREA M. SCHOOR-WEST Fax: (916) 324-8835
Deputy Attorney General Email: John.Killeen@doj.ca.gov
Attorneys for Defendants-Appellees
Governor Gavin Newsom, Attorney
General Rob Bonta, and CDPH Director
Tomás Aragón
TABLE OF CONTENTS
Page
Introduction .................................................................................................... 1
Jurisdictional Statement ................................................................................. 3
Issues Presented ............................................................................................. 4
Pertinent Constitutional Provisions ............................................................... 4
Statement of the Case .................................................................................... 4
I. The COVID-19 Pandemic and California’s Response ............. 4
II. This Case ................................................................................. 11
III. The District Court’s Ruling Dismissing the TAC Without
Leave to Amend ...................................................................... 14
Summary of Argument ................................................................................ 19
Argument ..................................................................................................... 21
I. The Appeal Should Be Dismissed for Lack of
Jurisdiction .............................................................................. 21
A. This Case Is Moot ......................................................... 21
1. Plaintiffs no longer suffer any injury or
potential injury.................................................... 21
2. No exception to mootness applies here .............. 24
B. The Court Lacks Jurisdiction to Restrain the State
Defendants Based on State Law ................................... 30
II. If the Court Reaches the Merits, It Should Affirm ................. 32
A. Standard of Review ....................................................... 32
B. The Third Amended Complaint Fails to State a
Claim ............................................................................. 33
1. The district court applied traditional
rational-basis review and found Plaintiffs’
claims lacking under that standard ..................... 33
ii
TABLE OF CONTENTS
(continued)
Page
2. The TAC does not state a claim for a

violation of the First Amendment ...................... 35
a. Freedom of speech and expressive
conduct ..................................................... 36
b. Freedom of assembly and the right of
expressive association .............................. 39
c. Even if California had regulated
Plaintiffs’ expression, its regulations
survived scrutiny ...................................... 41
violation of the Privileges or Immunities
Clause ................................................................. 45
violation of the Due Process Clause ................... 47
a. Procedural due process ............................. 47
b. Substantive due process ........................... 50
violation of the Equal Protection Clause ............ 55
violation of the Contracts Clause ....................... 58
7. Even if they were not barred by sovereign
immunity, the TAC’s state-law claims fail to
state plausible claims for relief ........................... 62
a. “Liberty Clause” of the California
Constitution .............................................. 62
b. Equal Protection Clause of the
California Constitution ............................. 63
Conclusion ................................................................................................... 64
iii
TABLE OF AUTHORITIES
(continued)
Page
CASES
Allied Structural Steel Co. v. Spannaus
438 U.S. 234 (1978)........................................................................... 59, 60
Already, LLC v. Nike, Inc.

568 U.S. 85 (2013)................................................................................... 21
Am. Cargo Transp., Inc. v. United States

625 F.3d 1176 (9th Cir. 2010) ................................................................. 24
Arcara v. Cloud Books, Inc.

478 U.S. 697 (1986)........................................................................... 37, 38
Ashcroft v. Iqbal
556 U.S. 662 (2009)................................................................................. 32
Ball v. Massanari
254 F.3d 817 (9th Cir. 2001) ................................................................... 56
Bayer v. Neiman Marcus Grp., Inc.

861 F.3d 853 (9th Cir. 2017) ................................................................... 23
Bd. of Trustees of Glazing Health & Welfare Trust v. Chambers

941 F.3d 1195 (9th Cir. 2019) ........................................................... 24, 25
Bi-Metallic Inv. Co. v. State Bd. of Equalization

239 U.S. 441 (1915)................................................................................. 48
Big Tyme Invs., L.L.C. v. Edwards

985 F.3d 456 (5th Cir. 2021) ............................................................. 34, 35
Brach v. Newsom
Case No. 20-56291, 2021 WL 3124310 (9th Cir. July 23,
2021) ............................................................................................ 24, 28, 30
iv
(continued)
Page
Brown v. Rawson-Neal Psychiatric Hosp.

840 F.3d 1146 (9th Cir. 2016) ............................................... 39, 42, 45, 53
Campanelli v. Allstate Life Ins. Co.

322 F.3d 1086 (9th Cir. 2003) ................................................................. 61
City of Cleburne v. Cleburne Living Ctr, Inc.

473 U.S. 432 (1985)................................................................................. 55
City of Dallas v. Stanglin

490 U.S. 19 (1989)....................................................................... 39, 40, 41
Clark v. Cmty. for Creative Non-Violence

468 U.S. 288 (1984)................................................................................. 36
Corales v. Bennett
567 F.3d 554 (9th Cir. 2009) ................................................................... 51
Crossley v. California
479 F. Supp. 3d 901 (S.D. Cal. 2020) ..................................................... 62
Curry v. Yelp Inc.

875 F.3d 1219 (9th Cir. 2017) ................................................................. 33
Davis v. HSBC Bank Nevada, N.A.

691 F.3d 1152 (9th Cir. 2012) ................................................................. 32
Doe v. Regents of the Univ. of Cal.

891 F.3d 1147 (9th Cir. 2018) ................................................................. 31
East N.Y. Sav. Bank v. Hahn

326 U.S. 230 (1945)................................................................................. 61
Edge v. City of Everett

929 F.3d 657 (9th Cir. 2019) ................................................................... 37
v
(continued)
Page
Energy Reserves Grp., Inc. v. Kansas Power & Light Co.

459 U.S. 400 (1983)............................................................... 58, 59, 60, 61
F.C.C. v. Beach Commc’ns

508 U.S. 307 (1993)........................................................................... 54, 55
Fowler Packing Co., Inc. v. Lanier

844 F.3d 809 (9th Cir. 2016) ................................................................... 54
Franceschi v. Yee
887 F.3d 927 (9th Cir. 2018) ................................................................... 51
Freeman v. City of Santa Ana

68 F.3d 1180 (9th Cir. 1995) ................................................................... 57
Gallinger v. Becerra
898 F.3d 1012 (9th Cir. 2018) ................................................................. 55
Gallo v. U.S. Dist. Ct. for Dist. of Ariz.

349 F.3d 1169 (9th Cir. 2003) ................................................................. 48
Gator.com Corp. v. L.L. Bean, Inc.

398 F.3d 1125 (9th Cir. 2005) ................................................................. 23
Green v. Mansour
474 U.S. 64 (1985)................................................................................... 24
Halverson v. Skagit Cnty.

42 F.3d 1257 (9th Cir. 1994) ................................................. 47, 48, 49, 50
Hamamoto v. Ige
881 F.3d 719 (9th Cir. 2018) ................................................................... 29
Hannemann v. Southern Door County School Dist.

673 F.3d 746 (7th Cir. 2012) ................................................................... 46
vi
(continued)
Page
Home Bldg. & Loan Ass’n v. Blaisdell

290 U.S. 398 (1934)................................................................................. 61
Homeaway.com v. City of Santa Monica

918 F.3d 676 (9th Cir. 2019) ............................................................. 37, 38
Hotel & Motel Ass’n of Oakland v. City of Oakland

344 F.3d 959 (9th Cir. 2003) ................................................................... 50
In re The Financial Oversight & Mngmt. Bd. for Puerto Rico

979 F.3d 10 (1st Cir. 2020)...................................................................... 62
Int’l Franchise Ass’n v. City of Seattle

803 F.3d 389 (9th Cir. 2015) ............................................................. 37, 38
Jackson Water Works, Inc. v. Public Utils. Comm’n of State of

Cal.
793 F.2d 1090 (9th Cir. 1986) ................................................................. 56
Jacobson v. Massachusetts
197 U.S. 11 (1905)............................................................................ passim
Jones v. Cuomo
No. Civ. 4898 (KPF), 2021 WL 2269551 (S.D.N.Y. Jun. 3,
2021) ........................................................................................................ 34
Kenneally v. Med. Bd.

27 Cal. App. 4th 489 (1994) .................................................................... 63
Klaasen v. Trustees of Ind. Univ.

__ F.4th __, No. 21-2326, 2021 WL 3281209 (7th Cir. Aug.
2, 2021) .................................................................................................... 34
League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer

814 F. App’x 125 (6th Cir. 2020) ............................................................ 54
vii
(continued)
Page
Lewis v. Cont’l Bank Corp.

494 U.S. 472 (1990)................................................................................. 21
Manduley v. Superior Ct.

27 Cal. 4th 537 (2002) ............................................................................. 63
Manigault v. Springs
199 U.S. 473 (1905)................................................................................. 59
Marshall v. United States

414 U.S. 417 (1974)................................................................................. 55
Matsuda v. City of Honolulu

512 F.3d 1148 (9th Cir. 2008) ........................................................... 58, 61
Midway Venture LLC v. Cty. of San Diego

60 Cal. App. 5th 58 (2021) ...................................................................... 38
Murphy v. Hunt
455 U.S. 478 (1982)........................................................................... 22, 29
NASD Dispute Resolution, Inc. v. Jud. Council of State of Cal.

488 F.3d 1065 (9th Cir. 2007) ................................................................. 23
Nat. Org. for Reform of Marijuana Laws v. Gain

100 Cal. App. 3d 586 (1979) ................................................................... 63
Nordyke v. King
644 F.3d 776 (9th Cir. 2011) ................................................................... 42
Nunez by Nunez v. City of San Diego

114 F.3d 935 (9th Cir. 1997) ................................................................... 45
Olson v. Bonta, No. CV 19-10956-DMG RAOx), 2021 WL

3474015 (C.D. Cal. Jul. 16, 2021) ........................................................... 62
viii
(continued)
Page
Open Our Oregon v. Brown

No. 6:20-cv-773-MC, 2020 WL 2542861 (D. Or. May 19,
2020) ........................................................................................................ 33
Pennhurst State Sch. & Hosp. v. Halderman

465 U.S. 89 (1984)................................................................................... 31
Plyler v. Doe
457 U.S. 202 (1982)........................................................................... 55, 56
Porter v. Jones
319 F.3d 483 (9th Cir. 2003) ................................................................... 29
Roberts v. U.S. Jaycees

468 U.S. 609 (1984)........................................................................... 39, 40
Roman Cath. Diocese of Brooklyn v. Cuomo

141 S. Ct. 63 (2020)..................................................................... 34, 43, 55
S. Bay United Pentecostal Church v. Newsom

140 S. Ct. 1613 (May 29, 2020) ............................................................ 4, 5
S. Bay United Pentecostal Church v. Newsom

985 F.3d 1128 (9th Cir. 2021) ................................................................. 25
Saenz v. Roe
526 U.S. 489 (1999)................................................................................. 45
Sagana v. Tenorio
384 F.3d 731 (9th Cir. 2004) ................................................................... 52
Samsom v. City of Bainbridge Island

683 F.3d 1051 (9th Cir. 2012) ........................................................... 47, 49
Schweiker v. Wilson
450 U.S. 221 (1981)................................................................................. 54
ix
(continued)
Page
Shanks v. Dressel
540 F.3d 1082 (9th Cir. 2008) ................................................................. 47
Slidewaters v. Wash. State Dep’t of Labor

___ F.4th ____, No. 20-35634, 2021 WL 2836630 (9th Cir.
July 8, 2021) .......................................................................... 20, 51, 52, 53
Spencer v. Kemna
523 U.S. 1 (1998)..................................................................................... 23
Sveen v. Melin
138 S. Ct. 1815 (2018)............................................................................. 59
Tandon v. Newsom
141 S. Ct. 1294 (2021)........................................................... 24, 34, 52, 56
Tandon v. Newsom
992 F.3d 916 (9th Cir. 2021) ............................................................. 52, 56
Thompson v. Paul
547 F.3d 1055 (9th Cir. 2008) ................................................................. 33
Turner Broadcasting Sys., Inc. v. FCC

520 U.S. 180 (1997)................................................................................. 43
U.S. v. Harding
971 F.2d 410 (9th Cir. 1992) ................................................................... 56
U.S. v. Navarro
800 F.3d 1104 (9th Cir. 2015) ................................................................. 53
U.S. v. O’Brien
391 U.S. 367 (1968)........................................................................... 42, 43
United States Trust Co. v. New Jersey

431 U.S. 1 (1977)..................................................................................... 59
x
(continued)
Page
United States v. Albertini

472 U.S. 675 (1985)................................................................................. 43
Univ. of Haw. Prof. Assembly v. Cayetano

183 F.3d 1096 (9th Cir. 1999) ................................................................. 60
Virginia v. Black
538 U.S. 343 (2003)................................................................................. 36
Watters v. Bd. of Sch. Directors of the City of Scranton

975 F.3d 406 (3rd Cir. 2020) ................................................................... 62
Williams v. Town of Greenburgh

535 F.3d 71 (2d Cir. 2008) ...................................................................... 46
STATUTES
California Government Code
§ 8567(a) ............................................................................................ 43, 48
California Health & Safety Code

§ 120140 ............................................................................................ 43, 48
Title 28 United States Code

§ 1331 .........................................................................................................3
§ 1343(a) .....................................................................................................3
Title 42 United States Code

§ 1983 .........................................................................................................3
///
///
///
xi
(continued)
Page
CONSTITUTIONAL PROVISIONS
California Constitution
Article I § 1 .................................................................................. 18, 30, 62
Article I § 7 ........................................................................................ 30, 63
United States Constitution

Amendment I .................................................................................... passim
Amendment V .................................................................................... 11, 13
Amendment XI ................................................................................. passim
Amendment XIV .............................................................................. passim
Article I § 10, cl. 1 ................................................................................... 58
OTHER AUTHORITIES
Beyond the Blueprint for a Safer Economy,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COV
ID-19/beyond_memo.aspx (as of August 12, 2021) ..................................8
Executive Order
N-07-21 ............................................................................................. passim
N-33-20 ............................................................................................. passim
N-60-20 ................................................................................................ 8, 22
https://covid19.ca.gov/safely-reopening/#past-restrictions (as of
August 13, 2021) ........................................................................................7
https://covid19.ca.gov/state-dashboard/ (last accessed Aug. 16,

2021) ...........................................................................................................4
https://covid19.ca.gov/vaccination-progress-data/ (as of August

12, 2021) .................................................................................................. 26
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Doc
ument%20Library/COVID-19/Dimmer-Framework-
September_2020.pdf (as of August 13, 2021) ............................................7
xii
(continued)
Page
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/Face-Coverings-QA.aspx (as of August 12, 2021) ............................ 10
https://www.gov.ca.gov/2020/08/28/governor-newsom-unveils-
blueprint-for-a-safer-economy-a-statewide-stringent-and-
slow-plan-for-living-with-covid-19/ (as of August 13, 2021)....................7
, https://www.gov.ca.gov/wp-content/uploads/2021/06/6.11.21-
EO-N-07-21-signed.pdf (as of August 12, 2021) .................................... 26
Masks, cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/guidance-for-face-coverings.aspx (as of August 12, 2021) ..................9
Order,
ID-19/Order-of-the-State-Public-Health-Officer-Health-
Care-Worker-Vaccine-Requirement.aspx ............................................... 27
Order,
ID-19/Order-of-the-State-Public-Health-Officer-Vaccine-
Verification-for-Workers-in-Schools.aspx .............................................. 27
State Public Health Officer Order of July 26, 2021,

ID-19/Order-of-the-State-Public-Health-Officer-
Unvaccinated-Workers-In-High-Risk-Settings.aspx (as of
August 12, 2021) ..................................................................................... 26
State Public Health Officer Order of June 11, 2021,

ID-19/Order-of-the-State-Public-Health-Officer-Beyond-
Blueprint.aspx (as of August 12, 2021) ......................................................9
xiii
INTRODUCTION
Plaintiffs-Appellants appeal the October 2020 dismissal of their third
amended complaint, in which Plaintiffs sought prospective equitable relief
against restrictions on gyms and fitness centers (“gyms”) under California’s
public-health orders that had been implemented to combat the COVID-19
pandemic. In June 2021, those restrictions were rescinded, when the
Governor and State Public Health Officer1 terminated the State’s “Stay-at-
Home Order” and “Blueprint for a Safer Economy,” as well as related
Executive Orders and public health orders. Because there are no longer any
relevant restrictions to enjoin, this appeal should be dismissed as moot.
For months now, Plaintiffs have been able to operate their gyms
unhindered by the capacity restrictions that Plaintiffs challenge in this
lawsuit because, as vaccination rates have skyrocketed and death rates have
plummeted, the State has retired the Blueprint for a Safer Economy
(including all of its capacity and activity restrictions on all institutions and
businesses), and also terminated the Executive Orders that underlay the
1
The Department of Public Health will be referred to as “CDPH.” Its
Director (State Public Health Officer Dr. Tomás Aragón), the Governor, and
Attorney General Rob Bonta will be referred to as the “State Defendants.”
The County of San Joaquin, Dr. Maggie Park, and the City of Lodi will be
referred to as the “County and City Defendants.”
1
entire Blueprint framework. No ongoing controversy or injury to redress
exists because Plaintiffs have already received the relief they seek.
Nor is there any reasonable prospect that the State will reimpose the
now-defunct restrictions on gyms. Scientific advancements (most
significantly, widely available vaccines) have now equipped the State with
superior tools to use in reducing infection and hospitalization rates than the
more-primitive ones (like distancing and capacity restrictions) it was
previously limited to. In these circumstances, there is no reason to expect
that the allegedly wrongful behavior will reoccur.
Alternatively, the Court should affirm the district court’s ruling because
the court correctly dismissed plaintiffs’ First Amendment, Privileges or
Immunities Clause, procedural due process, substantive due process, equal
protection, Contracts Clause, and California constitutional claims.
Plaintiffs’ main contention is that the district court erred by dismissing their
complaint under a special test for emergency measures instead of applying
the rational-basis standard of review that generally governs the review of
social and economic regulations. But the district court in fact applied both
levels of review, finding Plaintiffs’ claims lacking under each. Indeed, the
contention that California’s regulations of businesses like gyms violates their
constitutional rights has been rejected by this Court multiple times over the
2
last year, and must be rejected again: rational basis, not heightened scrutiny,
applies to a state’s regulation of business operations, and it is indisputable
that limiting contacts among individuals from different households is
rationally related to minimizing the spread of COVID-19. The district court
correctly held that the State’s temporary closure of gyms in response to an
airborne pandemic easily survived rational basis review, a ruling that
Plaintiffs do not dispute.
The appeal should be dismissed, or the Court should affirm.
JURISDICTIONAL STATEMENT
Plaintiffs brought this action under various provisions of the United
States Constitution, under 42 U.S.C. § 1983, and under state law. ER-42–
43; ER-88–108.2 The district court had subject matter jurisdiction over
Plaintiffs’ federal claims under 28 U.S.C. §§ 1331, 1343(a), but correctly
recognized that it had no jurisdiction with respect to the state-law claims
because of the Eleventh Amendment, see infra p. 30.
The district court granted State Defendants’ and County and City
Defendants’ motions to dismiss on October 27, 2020. Plaintiffs filed a
2
OB refers to Plaintiffs-Appellants’ Opening Brief.
3
timely notice of appeal on November 25, 2020. ER-126–127. This Court
lacks jurisdiction because the appeal is moot, see infra p. 21.
ISSUES PRESENTED
1. Whether this Court lacks jurisdiction over the federal claims
because the case is moot and lacks jurisdiction over the state-law claims
under the Eleventh Amendment?
2. Whether the district court properly dismissed Plaintiffs’ third
amended complaint for failure to state a claim?
PERTINENT CONSTITUTIONAL PROVISIONS

The pertinent constitutional provisions are set forth in an addendum to
this brief.
STATEMENT OF THE CASE
I. THE COVID-19 PANDEMIC AND CALIFORNIA’S RESPONSE

COVID-19 is “a novel severe acute respiratory illness that has killed
thousands of people in California.”3 S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1613 (May 29, 2020) (Roberts, C.J., concurring).
When this case was filed in May 2020, there was “no known cure, no
3
As of the filing of this brief, California has over four million
confirmed cases of COVID-19, resulting in over 64,000 deaths. See
https://covid19.ca.gov/state-dashboard/ (last accessed Aug. 16, 2021).
4
effective treatment, and no vaccine.” Id. “Because people [could] be
infected but asymptomatic, they [could] unwittingly infect others.” Id.
When COVID-19 reached California, State officials responded early
and based on the best available scientific data, implementing measures to
slow the virus’s spread. On March 4, 2020, the Governor proclaimed a State
of Emergency in California. ER-56 (¶ 102); SER-9. On March 19, 2020,
the Governor issued Executive Order N-33-20 (the “Stay-at-Home Order”)
directing all California residents to “stay home or at their place of residence
except as needed to maintain continuity of operations” in certain sectors
deemed critical. ER-57–58 (¶¶ 107-112); SER-15. The Governor declared
that “this Order is being issued to protect the public health of Californians”
and that “our goal is simple, we want to bend the curve, and disrupt the
spread of the virus.” ER-57–58 (¶ 111); SER-16. Local officials, including
defendant Dr. Park, the Health Officer for San Joaquin County, issued
similar orders. ER-58–59 (¶¶ 113-127); ER-60–61 (¶¶ 130-138). Under
these orders, gyms—like a host of businesses that were not categorized as
essential—were prohibited from operating their facilities (indoors or
outdoors) to decrease the spread of COVID-19. ER-59 (¶ 124); ER-61 (¶¶
137-38); ER-81–82 (¶¶ 228-233); see also SER-18–40.
5
In late April and early May of 2020, the Governor announced a
“Resilience Roadmap” to provide for the safe, gradual reopening of the
State. SER-42; SER-57–59; SER-61–63; ER-76–77 (¶¶ 209-215); ER-79
(¶ 219). On “June 5, [the Governor] announced his intention to permit the
re-opening of . . . fitness facilities.” ER-77 (¶ 209.) While this re-opening
began to occur depending on local conditions, in response to a new surge in
cases, the State tightened its restrictions by requiring restaurants and gyms to
cease indoor operations in areas of increasing community spread (while no
longer restricting outdoor operations). ER-86 (¶¶ 245-257); SER-99. The
State’s actions were based on public health studies showing that “the risk of
transmission is exacerbated in indoor spaces, particularly when lacking
appropriate ventilation,” where groups of people “mix with others for
prolonged periods of time.” SER-100; SER-108 (describing “recent studies
show that transmission is greater in indoor settings due to the release of
infectious particles into the air when someone speaks, coughs, sneezes, or
sings . . . .”).
On August 28, 2020, the State unveiled a new plan for relaxing
restrictions—the “Blueprint for a Safer Economy”—“[based on] lessons
6
learned [and] new scientific understanding.”4 The Blueprint imposed
restrictions upon various sectors or activities based on the risk that they
posed to public health, assessed in light of criteria including the number of
people involved, the riskiness of the activity, and the ability to employ
protective measures such as masks and physical distancing. Id. The
stringency of the restrictions varied depending on conditions in each county,
including case rates, positive-test rate, and a health equity metric. Id.
Under the Blueprint, gyms were allowed to operate outdoors, and could
operate indoors at varying percentage-capacity restrictions depending on the
level of community spread within a county: gyms in counties with the
highest transmission levels were limited to outdoor operations, while gyms
in lesser-hit counties could operate indoors from 10% capacity to 50%
capacity.5
4
See https://www.gov.ca.gov/2020/08/28/governor-newsom-unveils-
blueprint-for-a-safer-economy-a-statewide-stringent-and-slow-plan-for-
living-with-covid-19/ (as of August 13, 2021); https://covid19.ca.gov/safely-
reopening/#past-restrictions (as of August 13, 2021).
5
See
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20L
ibrary/COVID-19/Dimmer-Framework-September_2020.pdf (as of August
13, 2021).
7
On April 6, 2021, the Governor and CDPH announced that as of June
15, 2021, the Blueprint and related sector guidance (including capacity
restrictions on gyms) would be lifted in their entirety. 6 On June 11, 2021,
Governor Newsom issued Executive Order N-07-21, which provided that,
effective June 15, 2021, two key orders would be rescinded: (i) Executive
Order N-33-20, the initial March 19, 2020 Stay-at-Home order, and (ii)
Executive Order N-60-20, the May 4, 2020 order directing the State Public
Health Officer to issue a risk-based framework for reopening the economy
and which gave rise to the Blueprint.7
Additionally, on June 11, 2021, the State Public Health Officer issued
an order that requires individuals to follow the State’s masking guidance, the
State’s rules on large indoor events with over 5,000 attendees, and the
State’s COVID-19 Public Health Guidance for school and youth activities,
and specifies that aside from those requirements, guidance issued by the
6
See Beyond the Blueprint for a Safer Economy,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/beyond_memo.aspx (as of August 12, 2021).
7
See Executive Order N-07-21, https://www.gov.ca.gov/wp-
content/uploads/2021/06/6.11.21-EO-N-07-21-signed.pdf (as of August 12,
2021).
8
Department of Public Health will not be mandatory.8 That order expressly
supersedes the prior State Public Health Officer orders that established the
Blueprint (August 28, 2020 Order), imposed operational and capacity
restrictions in response to the Summer 2020 surge in cases (July 13, 2020
Order), and the original Stay-at-Home Order (March 19, 2020 Order), i.e.,
the remaining State Public Health Officer orders that imposed operational
and capacity restrictions on businesses. Id.
As a result of these actions, as of June 15, 2021, the Blueprint and
related sector guidance, including capacity restrictions on gyms and fitness
centers, were lifted in their entirety, permitting a return to usual operations.
Of the remaining State restrictions, the only requirement that
conceivably will be operative in gyms is the requirement that unvaccinated
people wear face coverings indoors.9 But the face covering requirement,
which Plaintiffs did not challenge, has only a minimal effect, if any, on gym
operations. To comply with the face covering guidance, gyms may (1) verify
8
See State Public Health Officer Order of June 11, 2021,
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-
the-State-Public-Health-Officer-Beyond-Blueprint.aspx (as of August 12,
2021).
9
Id.; see Guidance for the Use of Masks,
cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/guidance-for-face-
coverings.aspx (as of August 12, 2021).
9
vaccination status of all patrons, (2) require all patrons to wear masks, or (3)
“allow vaccinated individuals to self-attest that they are in compliance prior
to entry.” Id. A gym “may deem a [patron] customer, guest or attendee to
have self-attested to being vaccinated” if it “has prominently displayed
signage prior to entry explaining the requirements for unvaccinated
individuals to wear a mask and the individual enters the business premises
without wearing a mask.”10 With such signage, a person who enters a gym
unmasked is deemed to have self-attested to being vaccinated.
In sum, from March 19 to April 28, 2020, gyms in California were
completely prohibited from operating. From April 28 to August 28, 2020,
gyms could operate outdoors and indoors in some counties, depending on
local conditions and regulations. From August 28, 2020 to June 15, 2021,
gyms could always operate outdoors, and could operate indoors with
capacity limits based on community conditions under the Blueprint. And,
since June 15, 2021, there have been no capacity limitations on indoor or
outdoor gym operations.
///
///
10
See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/Face-Coverings-QA.aspx (as of August 12, 2021).
10
II. THIS CASE
On May 12, 2020, while the “Resilience Roadmap” was in place,
Plaintiffs filed their original complaint. SER-247. Plaintiffs challenged the
“state and county-wide orders commanding the closure of businesses
deemed ‘nonessential’ as part of [Defendants’] effort to counter the spread
of COVID-19.” SER-248. Plaintiffs alleged that these orders violated their
constitutional rights based on freedom of speech, freedom of assembly,
freedom of expressive association, the “right to travel,” the Takings Clause
of the Fifth Amendment, procedural due process, substantive due process,
due process based on vagueness, Equal Protection, the Contracts Clause, and
similar claims under the California Constitution. SER-267–286.
Plaintiffs also filed an application for a temporary restraining order.
On May 22, 2020, the district court denied the application. SER-174. On
the merits, the court first applied a mode of analysis focused on Jacobson v.
Massachusetts, 197 U.S. 11 (1905). SER-175. Under that precedent, the
court explained, when a state enacts an emergency public health measure,
courts will uphold it “unless (1) there is no real or substantial relation to
public health, or (2) the measure is ‘beyond all question’ a ‘plain and
palpable’ invasion of rights secured by fundamental law.’” Id. (quoting
Jacobson, 197 U.S. at 30).
11
The court viewed the Jacobson standard as unlikely to support
Plaintiffs’ requested relief. SER-179. Based on uncontroverted scientific
evidence provided by the State and County Defendants, the court determined
that “COVID-19 is a highly infectious, and sometimes deadly, virus that is
often spread by people who do not even know they have it. There’s no cure
or vaccine, and its long-term effects are still largely unknown. But health
experts do know this: limiting physical contact between people is the most
effective way to stop COVID-19’s spread.” SER-186–187. The court also
determined that the “undisputed information about COVID-19 and its
transmission logically explains why State and County officials found that
temporary gym closures were, and continue to be, a critical step in slowing
the virus’ spread. Workout facilities often contain high density groups,
congregating and exercising in closed areas at the same time, breathing
heavily, and sharing gym equipment.” SER-180. For these reasons, the
court found that the emergency restrictions bore a real or substantial relation
to public health. SER-181.
The district court then held that the emergency restrictions were not a
plain and palpable invasion of rights secured by fundamental law. SER-181.
In analyzing this prong, the court effectively applied traditional
constitutional standards. The court held that the regulation of gyms did not
12
implicate any fundamental rights. SER-181–186. And under the deferential
level of review applied to economic regulations, the court held the
restrictions imposed on gyms survived rational basis because they were
“temporary, rooted in science, and proportional to the threat COVID-19
poses.” SER-190; SER-186–188 (applying rational-basis review).
After amending their complaint twice, on July 29, 2020, Plaintiffs filed
their operative third amended complaint. ER-40. Plaintiffs alleged that “[i]n
San Joaquin County and California more generally, gyms have been closed
for months . . . .” ER-50 (¶ 64). Plaintiffs alleged that their gyms had been
closed. ER-66 (¶ 171); ER-86 (¶¶ 245-257). Plaintiffs alleged that they
suffered declines in revenue as a result of these closures. ER-52–53.
Plaintiffs again alleged that California’s temporary closures of gyms in
response to the COVID-19 pandemic violated their constitutional rights
based on freedom of speech, freedom of assembly, freedom of expressive
association, the “right to travel,” procedural due process, substantive due
process, due process based on vagueness, Equal Protection, the Contracts
Clause, and similar claims under the California Constitution. ER-88–108.
Although Plaintiffs pleaded claims based on the Takings Clauses of the
Fifth Amendment and the California Constitution against County and City
Defendants, Plaintiffs did not raise a Takings claim, or any other damages
13
claim, against State Defendants. ER-92. Plaintiffs “expressly
acknowledge[d] that the State Defendants are not answerable in damages”
and “expressly repudiate[d] any assertion that they seek any relief against
the State Defendants except equitable relief in the nature of a forward-
looking temporary restraining order and preliminary and permanent
injunctions.” ER-68 (¶ 183).
III. THE DISTRICT COURT’S RULING DISMISSING THE TAC

WITHOUT LEAVE TO AMEND
State Defendants and County and City Defendants filed motions to
dismiss the third amended complaint. On October 27, 2020, the district
court granted the motions to dismiss from the bench. ER-3; ER-18.
The court again concluded that, under Jacobson, Plaintiffs could not
plausibly plead that California’s temporary restrictions on gyms (1) had “no
real or substantial relation to public health”; or (2) were “beyond all
question,” a “plain palpable invasion of rights secured by fundamental law.”
ER-20 (quoting Jacobson, 197 U.S. at 30); ER-21–22 (incorporating by
reference SER-179–181).
The court then separately held that the TAC “fail[ed] even when
viewed under traditional constitutional standards.” ER-22.
14
First, the court held that Plaintiffs had not plausibly alleged a violation
of the First Amendment. ER-22–23 (incorporating by reference SER-181–
183). The court held that the temporary closure of gyms and subsequent
capacity limitations regulated “non-expressive conduct” that the First
Amendment did not protect; any impingement on the “non-expressive
commercial interaction[s]” between the gym operators and their customers
was at most “incidental” and did not warrant constitutional scrutiny. ER-
23–24. But even if “First Amendment free-speech protections were
somehow triggered,” the court reasoned that gym closures were
constitutional under intermediate scrutiny because the challenged orders
were “content neutral, narrowly tailored to serve a significant governmental
interest, and [left] open ample alternative means of communication.” ER-
24–25. The court held that preventing the spread of COVID-19 was a
significant government interest, and Plaintiffs could communicate with their
clients in innumerable ways; the only thing they could not do was operate an
indoor gym where people congregated to exercise. ER-25.
Second, the court held that Plaintiffs had not plausibly alleged a
violation of either the Federal or California Takings Clauses against the
County and City Defendants. ER-25–27. Plaintiffs sought no damages
claims against the State Defendants. ER-68.

15
Third, the court held that Plaintiffs had not plausibly alleged a violation
of their “right to travel” under the “Fourteenth Amendment Privileges or
Immunities Clause.” ER-27 (incorporating by reference SER-183). The
district court held that “[n]either the Supreme Court, nor the Ninth Circuit
has recognized a constitutional right to intrastate travel,” e.g., in Plaintiffs’
case, traveling to and from their gyms. ER-28.
Fourth, the court held that Plaintiffs had not plausibly alleged a
violation of the procedural component of the Fourteenth Amendment’s Due
Process Clause, because there was “no legal requirement that
[individualized] notice be provided before the orders were issued” on a state-
wide basis. ER-29 (incorporating by reference SER-185).
Fifth, the court held that Plaintiffs had not plausibly alleged a violation
of the substantive component of the Fourteenth Amendment’s Due Process
Clause, because the State’s temporary closure of non-essential businesses to
stem the spread of a highly contagious virus neither “shocks the conscience”
nor “arbitrarily deprives [Plaintiffs] of a fundamental right.” ER-29
(incorporating by reference SER-186).
Sixth, the court held that Plaintiffs had not plausibly alleged a violation
of the vagueness component of the Fourteenth Amendment’s Due Process
Clause, because Plaintiffs had pleaded nothing “more than a conclusory

16
allegation that the public health orders are vague.” ER-30. The court
observed that “Plaintiffs themselves have acknowledged that they actually
understand the public health orders and what they do and do not permit.”
ER-30.11
Seventh, the court held that Plaintiffs had not plausibly alleged a
violation of the Equal Protection Clause of the United States Constitution or
the California Constitution (if arguendo it was not barred by the Eleventh
Amendment). ER-30–31 (incorporating by reference SER-187). The court
held that the gym closures were subject to only rational basis review because
they did “not impinge on Plaintiffs’ fundamental rights, nor [did] they
discriminate based on any suspect classification.” ER-31. The court then
held that the State’s orders “clearly pass muster under a rational basis
review.” ER-32. The court found that “the decision to include gyms within
[California’s] general prohibition on large indoor gatherings was rational,”
given the gravity of the threat posed by COVID-19 and “the fact that gyms
are particularly high-risk environments for the transmission of COVID-19.”
Id. The court also found that “[t]he newest restrictions on gyms reopening,
including capacity restrictions [i.e., the Blueprint], likewise, passes rational
11
Plaintiffs have now abandoned their vagueness claim. See OB at 50
n.7.
17
basis review, because they are rationally related to slowing the spread of
COVID-19.” Id.
Eighth, the court held that Plaintiffs had not plausibly alleged a
violation of the Contracts Clause. ER-33. Rejecting Plaintiffs’ arguments
that limiting indoor gym operations served no public purpose that would
justify the impairment of Plaintiffs’ contracts with their clients, the district
court concluded “the obvious, that the orders being challenged do, in fact,
have a significant and legitimate public purpose to curb the spread of
COVID-19,” and the orders were reasonable and necessary to achieve that
purpose. ER-33–34.
Ninth, the court held that Plaintiffs had not plausibly alleged a violation
of the California Constitution’s “liberty clause” (if arguendo it was not
barred by the Eleventh Amendment). ER-34 (incorporating by reference
SER-188; see Cal. Const., art. I, § 1). The court held that California’s
temporary restrictions on gym operations did not “operate as a quarantine on
Plaintiffs, let alone amount to a virtual imprisonment” that was required to
state such a claim under California law. ER-34. The court found that
Plaintiff Best Supplement “is a corporate entity” that “cannot be infected or
quarantined,” and Plaintiff Sean Covell “is not and has never been restrained
from leaving his home.” Id.

18
The district court acknowledged “Plaintiffs’ economic plight” and the
“plight of all businesses that have been affected due to this pandemic.” ER-
35. But because the State and County orders “were a constitutional response
to an unprecedented pandemic,” the district court granted the motions to
dismiss. ER-35. The district court also denied leave to amend because “this
[was] the Third Amended Complaint,” “Plaintiffs have had ample
opportunity to try to state claims that would survive dismissal,” and any
further amendment “would be futile.” ER-36.
Plaintiffs timely filed a notice of appeal. ER-113.
SUMMARY OF ARGUMENT
The Court should dismiss this appeal for lack of jurisdiction. The
orders Plaintiffs challenge have been rescinded, and the dispute is now moot.
There are no capacity or similar limitations on Plaintiffs’ gyms, and no
exception to mootness applies that would allow the litigation of this appeal
to continue. Additionally, Plaintiffs’ attempt to secure an injunction or
declaration against state officials based on purported violations of state law
is barred by the Eleventh Amendment.
On the merits, should they be reached, the operative issues substantially
differ from what Plaintiffs describe. This case does not hinge upon a dispute
between traditional constitutional analysis and a special extraordinarily
19
deferential standard applicable to health regulations. As the district court
concluded, Plaintiffs’ assertions of constitutional violations failed under any
standard of review. Plaintiffs do not address significant portions of the
court’s order, and have thereby waived further challenge to these rulings.
To the extent Plaintiffs address the district court’s reasoning on the
merits, the district court’s order was correct. In the face of a public health
emergency, especially one as dangerous as the COVID-19 pandemic, the
Governor is authorized to exercise broad emergency powers to protect the
public health. “States are given ‘great leeway in adopting summary
procedures to protect public health and safety.’” Slidewaters v. Wash. State
Dep’t of Labor, ___ F.4th ____, No. 20-35634, 2021 WL 2836630, at *7
(9th Cir. July 8, 2021); see also Jacobson v. Massachusetts, 197 U.S. 11, 29
(1905) (“[U]nder the pressure of great dangers,” constitutional rights may be
reasonably restricted “as the safety of the general public may demand.”).
California’s temporary restrictions on gyms to limit the spread of disease
during an unprecedented pandemic implicated no fundamental rights or
heightened constitutional scrutiny, but were economic and social regulations
that easily survive rational basis review. The district court’s order should be
affirmed.
20
ARGUMENT
I. THE APPEAL SHOULD BE DISMISSED FOR LACK OF

JURISDICTION
This Court lacks jurisdiction over this appeal because intervening
events have rendered the appeal moot. Moreover, the Eleventh Amendment
does not permit Plaintiffs’ attempt to enjoin state officials based on
purported violations of state law. The appeal should be dismissed.
A. This Case Is Moot

Appellate jurisdiction is lacking because the health directives Plaintiffs
wanted relief from are no longer in effect, and there is no reasonable
expectation that they will return.
1. Plaintiffs no longer suffer any injury or potential

injury
“Under Article III of the Constitution, federal courts may adjudicate
only actual, ongoing cases or controversies,” which means that “a litigant
must have suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial decision.” Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “A case becomes moot—
and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article
III—'when the issues presented are no longer “live” or the parties lack a
legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568
21
U.S. 85, 91 (2013) (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982)). The
Supreme Court has “repeatedly held that an actual controversy must exist
not only at the time the complaint is filed, but through all stages of the
litigation.” Id. at 90–91 (2013) (citation and quotations omitted).
Here, Plaintiffs sought only equitable relief against the State
Defendants, having expressly disclaimed any right to damages. ER-68.
Specifically, they sought a “forward-looking” order temporarily and
permanently enjoining the State Defendants from “enforcing the Orders”
against them, and a declaration that the challenged orders were “null and
void.” ER-109; ER-68.
While these requests may have been live when Plaintiffs filed their
TAC on July 29, 2020, that is no longer the case. The State has since
deconstructed the scaffolding of orders supporting the restrictions that
plaintiffs challenged. On June 11, after months of pronouncements that
California would be fully reopening, Governor Newsom issued EO N-07-21,
which rescinded EO N-33-20 (the original March 19, 2020 Stay-at-Home
Order) and EO N-60-20 (the May 4, 2020 order that authorized and directed
the Public Health Officer to impose COVID-related restrictions on
businesses and activities such as the Blueprint for a Safer Economy). See
supra notes 6-7 and accompanying text. And, accordingly, the State Public
22
Health Officer terminated the Blueprint and nearly all other COVID-related
restrictions on June 15. See supra note 8 and accompanying text. There is
thus no “effective relief” this Court could award. NASD Dispute Resolution,
Inc. v. Jud. Council of State of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007)
(citations omitted).
Plaintiffs’ request for declaratory relief is likewise moot. Mootness is
“not relaxed in the declaratory judgment context.” Gator.com Corp. v. L.L.
Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en banc). A plaintiff
seeking declaratory relief must “show that there is a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.” Id. (citations and
quotations omitted). “[T]o avoid mootness with respect to a claim for
declaratory relief on the ground that the relief sought will address an
ongoing policy, the plaintiff must show that the policy has adversely
affected and continues to affect a present interest.” Bayer v. Neiman Marcus
Grp., Inc., 861 F.3d 853, 868 (9th Cir. 2017) (internal quotation marks and
citation omitted) (emphasis added). “[A] declaratory judgment merely
adjudicating past violations of federal law—as opposed to continuing or
future violations of federal law—is not an appropriate exercise of federal
jurisdiction.” Id.; see also Spencer v. Kemna, 523 U.S. 1, 18 (1998) (Courts
23
“are not in the business of pronouncing that past actions which have no
demonstrable continuing effect were right or wrong.”).
Moreover, the Eleventh Amendment would bar any retroactive
declaration concerning the State’s former orders. See Green v. Mansour,
474 U.S. 64, 73 (1985).
2. No exception to mootness applies here

The “voluntary cessation” exception to mootness does not apply here.
See Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (case not moot “if
challengers “‘remain under a constant threat’ that government officials will
use their power to reinstate the challenged restrictions”); Brach v. Newsom,
Case No. 20-56291, 2021 WL 3124310 (9th Cir. July 23, 2021). In cases
against the government, a change in governing law or policy “presents a
special circumstance in the world of mootness” whereby “unlike in the case
of a private party, [courts] presume the government is acting in good faith.”
Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir.
2010). Thus, as this Court has held repeatedly, such a change by the
government “should not be treated the same as voluntary cessation of
challenged acts by a private party.” Bd. of Trustees of Glazing Health &
Welfare Trust v. Chambers, 941 F.3d 1195 1199 (9th Cir. 2019) (en banc);
Am. Cargo, 625 F.3d at 1180 (“[C]essation of the allegedly illegal conduct
24
by government officials has been treated with more solicitude by the courts
than similar action by private parties.”) (quotation marks omitted).
Accordingly, under the standard for government defendants, mootness
caused by changes in the governing law can only be overcome with
“evidence in the record” showing that the prior law or policy is likely to be
enacted again. Glazing Health, 941 F.3d at 1199.
Here, the circumstances that led the Governor to impose the restrictions
in his spring 2020 executive orders are now absent, and there is no
likelihood that the Governor or CDPH will impose similar restrictions in the
future. The Governor imposed restrictions because, at the time, the State
had no other immediate options to deal with the COVID-19 emergency by
limiting the spread of the disease, during a time when there was neither a
cure nor a vaccine. See, e.g., S. Bay United Pentecostal Church v. Newsom,
985 F.3d 1128, 1132-36, 1141 n.21 (9th Cir. 2021) (discussing grave threat
posed by COVID-19). But those restrictions have now served their purpose:
The challenged orders were rescinded because high vaccination rates in
California, and the State’s “decisive and meaningful actions to reduce the
spread, and mitigate the impacts, of COVID-19,” have led to “dramatically
25
lower disease prevalence and death.”12 And because vaccines—which “are
effective in reducing infection and serious disease,”13 and which were not
widely available to control the spread of disease until the spring of 2021—
remain widely available to all people age twelve or older, restrictive non-
pharmaceutical interventions like stay-at-home orders and mandatory
capacity restrictions are no longer necessary. Executive Order N-07-21
noted that as of June 9, 2021, 54.3% of eligible Californians have received a
full course of COVID-19 vaccination. Id. That number has since climbed to
59.6% of eligible Californians fully vaccinated and another 9.6% partially
vaccinated, with more people being vaccinated every day. 14 With such
vaccination rates, and with the continued availability of masking as an
effective public health tool, restrictions on public activities are no longer the
sole means to combat the spread of COVID-19 and avoid the collapse of the
12
See Executive Order N-07-21 at 1, https://www.gov.ca.gov/wp-
content/uploads/2021/06/6.11.21-EO-N-07-21-signed.pdf (as of August 12,
2021).
13
See State Public Health Officer Order of July 26, 2021,
the-State-Public-Health-Officer-Unvaccinated-Workers-In-High-Risk-
Settings.aspx (as of August 12, 2021).
14
See https://covid19.ca.gov/vaccination-progress-data/ (as of August
12, 2021).
26
state’s health care system, which was a real threat over much of the past
year. As a result, there is no reason to expect that the Blueprint’s capacity
restrictions or other similar business restrictions will be reinstated.
The fact that the new post-Blueprint policy already has been in place
for several months without reversal and with full implementation supports
this conclusion. The Governor announced on April 6 that the State would
remove the Blueprint by June 15 and that is precisely what the State did.
See supra notes 6-8. The circumstances warranting rescission of the
Blueprint—high and rising vaccination rates—have become more
entrenched since June 15. Nothing has occurred since the State announced
the new policy three months ago to suggest that the Blueprint or any other
similar business restrictions will be reinstated. Indeed, even the spread of
the delta variant and the July-August increase in case counts have not led the
State to reimpose capacity restrictions in businesses and other settings, but
instead to focus on vaccination, testing, and masking.15
15
See State Public Health Officer, August 11, 2021 Order,
the-State-Public-Health-Officer-Vaccine-Verification-for-Workers-in-
Schools.aspx (as of August 16, 2021); CDPH, State Public Health Officer,
August 5, 2021 Order,
the-State-Public-Health-Officer-Health-Care-Worker-Vaccine-
Requirement.aspx (as of August 16, 2021).
27
Brach v. Newsom, Case No. 20-56291, 2021 WL 3124310 (9th Cir.
July 23, 2021), is consistent with this result. In Brach, this Court concluded
that Plaintiffs’ challenge to the State’s school closures was not moot, noting
that the State had “refrained from abolishing the revised school reopening
framework despite the State’s decision to exempt all other industry and retail
sectors from the restrictions imposed under the ‘Blueprint for a Safer
Economy.’” 2021 WL 3124310, at *8 (emphasis added). The challenged
restrictions here, in contrast, were entirely rescinded by the Governor under
Executive Order N-07-21 on June 11, 2021, in light of medical and scientific
developments to combat the pandemic, and the economy has fully reopened
as of June 15, 2021. To be clear, the State disagrees with the result in
Brach. As the Brach decision acknowledged, and as the State emphasized in
its pending petition for rehearing en banc, the Governor “released a new
framework for the 2021-2022 school year” on July 12, 2021, “that does not
include reliance upon school closure.” 2021 WL 3124310, at *8. So it
should not have mattered in Brach that the State had previously “refrained
from abolishing the revised school reopening framework.” Id. To the extent
Brach relied on that consideration, however, that case can and should be
distinguished on that basis.
28
The “capable of repetition, yet evading review” exception to mootness
likewise does not apply. This rule “applies only in exceptional situations,
where (1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same
action again.” Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018). For
example, litigation involving fixed-term events like elections frequently
implicate the exception. See Porter v. Jones, 319 F.3d 483, 490 (9th Cir.
2003). But here, there is no “reasonable expectation” or “demonstrated
probability” that the same controversy will recur. Murphy v. Hunt, 455 U.S.
478, 482 (1982) (per curiam).
Plaintiffs also cannot show that they have a reasonable expectation that
they will be forced, in the future, to close their businesses due to another
pandemic. The executive orders that Plaintiffs challenge were related to the
current COVID-19 pandemic, not to all possible pandemics, and in any
event, were rescinded on June 11, 2021, through Executive Order N-07-21.
Additionally, pandemics on the scale of COVID-19 are rare. A pandemic on
the scale of COVID-19 has not been seen for over a century, and the more
recent SARS and avian flu pandemics did not require the state to impose the
types of non-pharmaceutical interventions required by COVID-19.

29
In Brach, the Court concluded that the dispute over school closures was
capable of repetition yet evading review “for substantially the same reasons”
it concluded that the voluntary cessation doctrine did not apply. Brach,
2021 WL 3124310, at *9. But as explained above, the architecture for
capacity restrictions on businesses is now obsolete. See supra notes 6-8.
There is therefore no “reasonable expectation” that the dispute could recur.
For these reasons, Plaintiffs’ claims for equitable relief are moot.
B. The Court Lacks Jurisdiction to Restrain the State

Defendants Based on State Law
The Court also lacks jurisdiction to decide Plaintiffs’ claims based on
state law, namely, Count Seven of the TAC, which asserted a violation of
the “right to liberty” component of article I, section 1 of the California
Constitution, and Count Eight of the TAC, which asserted a violation of the
Equal Protection Clause found in article I, section 7 of the California
Constitution. ER-103–107.16
16
Count Nine of the TAC asserted a violation of the Takings Clause
of the California Constitution. ER-108. Though the TAC indicated that it
was being brought “against All Defendants,” this appears to have been a
typo in light of Plaintiffs’ statement elsewhere that they were not seeking
damages against the State Defendants. ER-68 (¶ 183); see also ER-25-26
(characterizing “the takings claims in Count 2 and Count 9 under both
Federal and State law” as being brought against only the “County and City
Defendants”). Nor was there any indication in the district court that
30
In its May 2020 order denying Plaintiffs’ application for a temporary
restraining order, the district court correctly held that “Plaintiffs’ state
constitutional claim against state officials in their official capacity is barred
by the Eleventh Amendment.” SER-188 (citing Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 106). This ruling17 was consistent with
the principle that federal courts lack jurisdiction to “instruct[] state officials
on how to conform their conduct to state law.” Pennhurst, 465 U.S. 89; see
Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018)
(recognizing that “the Young exception [allowing prospective injunctive
relief against state officials] does not apply when a suit seeks relief under
state law”). Counts Seven and Eight of the TAC should be dismissed on this
basis alone.
///
Plaintiffs intended to prosecute Count Nine against the State Defendants,

which would be barred in any event for the same reasons as Counts Seven
and Eight.
17
In its October 27, 2020 order granting Defendants’ motions to
dismiss from the bench, the court did not expressly reiterate this principle.
But the court observed that its earlier “legal rationale is still appropriate”
(ER-6), and noted that there had been no “change in circumstances since
May that would allow any of these claims to go forward” (ER-7). Hence,
the court appeared to incorporate by reference its earlier ruling that it lacked
jurisdiction to decide Count 7 and Count 8 of the TAC.
31
II. IF THE COURT REACHES THE MERITS, IT SHOULD AFFIRM
If this Court finds that it has jurisdiction and reaches the merits, it
should affirm. Plaintiffs erroneously portray this case as a duel between two
standards of review, with the district court choosing to rest its decision on an
unusually forgiving standard for emergencies instead of the “traditional”
standards Plaintiffs say should apply. E.g., OB at 35-43. But the district
court did apply the traditional analysis Plaintiffs propose. ER-22 (holding
that the TAC “fails even when viewed under traditional constitutional
standards”). Plaintiffs did not survive the pleadings stage because under any
relevant standard of review, Plaintiffs could not plausibly allege that the
State’s temporary restrictions on gym operations to prevent the spread of
COVID-19 rose to the level of a constitutional violation.
A. Standard of Review
This Court reviews a district court’s grant of a motion to dismiss de
novo. Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1159 (9th Cir.
2012). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face. A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
32
662, 678 (2009) (citations and internal quotation marks omitted). This Court
may affirm on any ground supported by the record. Thompson v. Paul, 547
F.3d 1055, 1058-59 (9th Cir. 2008).
The district court’s “denial of leave to amend” is reviewed “for abuse
of discretion.” Curry v. Yelp Inc., 875 F.3d 1219, 1228 (9th Cir. 2017). A
district court does not abuse its discretion by denying leave to amend when it
previously “pointed out deficiencies in Plaintiffs’ pleadings,” and yet
“[d]espite these explicit warnings,” the plaintiff’s “amended complaint failed
to remedy the deficiencies.” Id.
B. The Third Amended Complaint Fails to State a Claim
1. The district court applied traditional rational-basis

review and found Plaintiffs’ claims lacking under
that standard
Very early in the COVID-19 pandemic, district courts throughout the
country upheld government public health measures under the Supreme
Court’s 1905 Jacobson decision. Under that case, public health measures
are valid unless they have “no real or substantial relation to” public health or
those measures are “beyond all question, a plain and palpable invasion of
rights secured by the fundamental law.” Jacobson v. Commonwealth of
Mass., 197 U.S. 11, 31 (1905); see also Open Our Oregon v. Brown, No.
6:20-cv-773-MC, 2020 WL 2542861, *2 (D. Or. May 19, 2020) (gathering
33
early district court cases); Jones v. Cuomo, No. Civ. 4898 (KPF), 2021 WL
2269551, *7 (S.D.N.Y. Jun. 3, 2021) (gathering recent cases).18
The relationship between a so-called “Jacobson test” for public health
emergencies and traditional tiers of scrutiny (which Jacobson pre-dated)
remains somewhat unclear, at least outside the context of fundamental First
Amendment rights.19 See, e.g., Klaasen v. Trustees of Ind. Univ., __ F.4th
__, No. 21-2326, 2021 WL 3281209 (7th Cir. Aug. 2, 2021) (describing
Jacobson as using a “rational-basis standard” while also rejecting the
argument “that courts should not be as deferential to the decisions of public
bodies as Jacobson was”); Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d 456,
465-68 (5th Cir. 2021) (discussing, but not rejecting, district courts’ stand-
alone Jacobson analysis before concluding that the court of appeals “would
reach the same conclusion applying settled rational basis review”); Jones,
2021 WL 2269551, *7 (describing cases that continue to apply Jacobson as
a separate standard).
18
To illustrate how widely this form of analysis was used, a Westlaw
search resulted in 88 citations to Jacobson in the federal district courts just
between March 1 and August 1, 2020.
19
The Supreme Court did not use this formulation from Jacobson in a
line of cases involving the free exercise of religion. See Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020); Tandon v. Newsom,
141 S. Ct. 1294 (2021).
34
However, the Court need not resolve any uncertainty about the status of
Jacobson because the district court did not purport to be applying, and did
not apply, a “‘sub-rational’ level of review.” Big Tyme Investments, 985
F.3d at 468. Although the district court alluded to Jacobson (ER-19–22), the
court also devoted most of its analysis to the application of “traditional
constitutional standards” (ER-22), under which Plaintiffs had failed to state a
plausible claim for relief. ER-22–35 (incorporating SER-181–190). This
ruling was correct and, in any event, under de novo review, the dismissal of
Plaintiffs’ claims should be affirmed.
2. The TAC does not state a claim for a violation of the

First Amendment
Plaintiffs’ claims based on the First Amendment fail as a matter of law.
ER-22–25; SER-181.
Faced with a highly contagious, uncurable disease that spread most
readily by respiratory transmission, the State followed the data to view
gyms—where people from different households breathe heavily over a long
period of time—as a potential source of concern in the early days of the
pandemic. California temporarily closed gyms for several months, and then
created the Blueprint, under which gyms could always operate outdoors, and
could increase their indoor operations as community spread of COVID-19
35
decreased. Now, there are no longer any capacity restrictions on gyms. The
district court correctly held that such a temporary restriction on business
operations did not implicate speech or expressive conduct at all, and
therefore the First Amendment did not apply. The court further held that,
even if the First Amendment somehow applied, California’s restrictions on
gyms survived scrutiny.
a. Freedom of speech and expressive conduct

Plaintiffs’ claims based on the First Amendment’s freedom-of-speech
and expressive-conduct protections fail as a matter of law. ER-23; SER-182.
The First Amendment prohibits undue interference with freedom of
speech, assembly, and expressive association. U.S. Const., amend. I. The
free speech clause affords protection only to symbolic or expressive conduct
and actual speech. See Virginia v. Black, 538 U.S. 343, 358 (2003). As the
party attempting to invoke the First Amendment, Plaintiffs bore the initial
burden of establishing that the First Amendment applies to them. See Clark
v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984).
Plaintiffs cannot not satisfy this burden as a matter of law. The State’s
restrictions on business operations—i.e., the ability to open or close a gym,
or to allow patrons to visit the gym—regulated only non-expressive
36
conduct,20 not speech. See Homeaway.com v. City of Santa Monica, 918
F.3d 676, 685 (9th Cir. 2019); Int’l Franchise Ass’n v. City of Seattle, 803
F.3d 389, 408 (9th Cir. 2015). To the extent that Plaintiffs interacted with
their customers as part of their business—through front staff, physical
trainers, or fitness instructors—such incidental communications did not
transform the operation of a gym into speech or expressive conduct. Arcara
v. Cloud Books, Inc., 478 U.S. 697, 708 (1986) (O’Connor, J., concurring)
(rejecting the “absurd result that any government action that had some
conceivable speech-inhibiting consequences . . . would require analysis
under the First Amendment”). Not every governmental restriction is subject
to scrutiny just because it has some incidental effect on speech or conduct.
Rather, restrictions are subject to scrutiny only when “conduct ‘with a
significant expressive element’ drew the legal remedy or the ordinance has
the inevitable effect of ‘singling out those engaged in expressive activity.’”
20
Were Plaintiffs to argue that working out at a gym is expressive
conduct covered by the First Amendment (cf. OB at 44 [“ecdysiasts or pole
dancers”], that claim would fail. Even if Plaintiffs’ employees or clients
subjectively intended to express themselves through their workouts, there is
no likelihood, let alone a “great” likelihood, that “the message will be
understood by those who viewed it.” Edge v. City of Everett, 929 F.3d 657,
668 (9th Cir. 2019).
37
Int’l Franchise Ass’n, 803 F.3d at 408 (citing Arcara, 478 U.S. at 706-07);
see Homeaway.com, 918 F.3d at 685.
California’s restrictions on gyms did neither. Plaintiffs pleaded no
facts alleging that California’s public health orders were crafted to stifle
Plaintiffs’ expression or that the public health orders singled out gym
businesses based on their expression. Rather, California’s restrictions were
generally applicable orders requiring that many business sectors, including
but not limited to gyms, operate with restrictions to reduce the opportunity
for community spread. Gyms were included in these restrictions not because
of their speech, but because they contained individuals or groups who
engage in high-intensity physical activity (i.e., heavy breathing) in an
enclosed space that was particularly susceptible to the spread of COVID-19.
SER-100 (relying on recent studies showing that “the risk of transmission is
exacerbated in indoor spaces, particularly when lacking appropriate
ventilation,” where groups of people “mix with others for prolonged periods
of time”). To the extent that these restrictions on conduct curtailed the
everyday communications between a business and its customers, that
curtailment did not rise to the level of implicating the First Amendment. See
also Midway Venture LLC v. Cty. of San Diego, 60 Cal. App. 5th 58, 88
38
(2021) (the purpose of the Blueprint was to prevent the spread of COVID-19
and “[a]ny suppression of expression is incidental . . .”).
b. Freedom of assembly and the right of

expressive association
Plaintiffs’ claims based on First Amendment’s freedom of assembly
and the right of association fail as a matter of law. ER-23; SER-182.
Plaintiffs offer no reasoned argument for why the court erred, stating only
the conclusion that “the Plaintiff-Appellants adequately alleged that they
were engaged in expressive association.” OB at 45. This failure to
adequately brief the issue waives any challenge to the district court’s ruling
on this point. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146,
1148 (9th Cir. 2016).
Even if the Court were to reach this issue, however, the district court’s
ruling should be affirmed. The “freedom of association” guaranteed by the
Constitution involves a “right to associate for the purpose of engaging in
those activities protected by the First Amendment—speech, assembly,
petition for the redress of grievances, and the exercise of religion.” Roberts
v. U.S. Jaycees, 468 U.S. 609, 618 (1984); see City of Dallas v. Stanglin,
39
490 U.S. 19, 24 (1989).21 To state a claim for violation of the freedom of
association, it is not sufficient to allege that the government is infringing
upon individuals’ right to “associate” as that term might be described “in
common parlance.” Id. Instead, plaintiffs must allege that they are
associating for the purpose of engaging in those activities protected by the
First Amendment, i.e., speech or expressive conduct. Id. at 24-25.
For example, in City of Dallas v. Stanglin, the City of Dallas restricted
admission to certain dance halls to persons between the age of 14 and 18.
City of Dallas, 490 U.S. 19, 20 (1989). The Texas Court of Appeals held
that the City’s ordinance violated the First Amendment right of persons in
that age range to associate with persons outside that age group. Id.
The Supreme Court reversed. The Court held that patrons of a dance
hall were not engaged in a form of expressive activity that was protected by
the First Amendment. City of Dallas, 490 U.S. at 24. Rather than being
members of an “organized association,” the teenagers were “patrons of the
same business establishment. Most are strangers to one another, and the
dance hall admits all who are willing to pay the admission fee.” Id. at 24-25.
21
Another line of “freedom of association” cases involves “choices to
enter into and maintain certain intimate human relationships.” Roberts, 468
U.S. at 617. Plaintiffs have not alleged that these cases are relevant.
40
Although in a literal sense there is some amount of “speech” whenever
people gather to dance, it was “not sufficient to bring the activity within the
protection of the First Amendment.” Id. at 25.
The same is true here. Just as the activity of “dance-hall patrons—
coming together to engage in recreational dancing—is not protected by the
First Amendment,” so too the gathering of individuals in a commercial gym
to work out in the same place is not protected by the First Amendment. City
of Dallas, 490 U.S. at 25. Plaintiffs do not allege in their TAC that they are
anything other than fitness businesses, or that their customers are anything
more than patrons of the establishment. Their gym operations are neither “a
form of intimate association” nor “a form of expressive association”
warranting the protection of the First Amendment. Id. at 25 (internal
citations and quotations omitted).
c. Even if California had regulated Plaintiffs’

expression, its regulations survived scrutiny
Even if the First Amendment were implicated (which it is not),
California’s temporary closure of gym facilities in response to COVID-19
would survive constitutional scrutiny, as the district court held. ER-24–25.
Plaintiffs have not challenged this alternative holding of the district court,
41
thereby waiving any further argument on this point. See Brown v. Rawson-
Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).
The district court correctly resolved this issue in any event. To the
extent that the temporary closure of gyms infringed upon Plaintiffs’ ability
to speak or express themselves, at most the O’Brien intermediate scrutiny
standard would apply. Nordyke v. King, 644 F.3d 776, 792 (9th Cir. 2011),
aff’d in relevant part, 681 F.3d 1041, 1043 n.2 (9th Cir. 2012) (en banc)
(citing U.S. v. O’Brien, 391 U.S. 367 (1968)) (“If a law hits speech because
it aimed at it, then courts apply strict scrutiny; but if it hits speech without
having aimed at it, then courts apply the O’Brien intermediate scrutiny
standard”).
Under O’Brien, “when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.” O’Brien, 391 U.S.
367 at 376. “[A] government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance

42
of that interest.” Id. at 377. The fourth O’Brien factor does not require that
a government regulation be the least restrictive means of furthering the
governmental interest. E.g., Turner Broadcasting Sys., Inc. v. FCC, 520
U.S. 180, 217-18 (1997). Rather, “an incidental burden on speech is no
greater than is essential . . . so long as the neutral regulation promotes a
substantial government interest that would be achieved less effectively
absent the regulation.” United States v. Albertini, 472 U.S. 675, 689 (1985).
Here, California’s public health orders satisfied each prong of the
O’Brien intermediate scrutiny test:
First, the public health orders are within the State Defendants’
constitutional powers to respond to public health emergencies. See, e.g.,
Cal. Gov’t Code § 8567(a) (authorizing Governor to issue orders during a
public emergency); Cal. Health & Safety Code § 120140 (authorizing CDPH
to issue orders to stop the spread of communicable disease).
Second, they furthered the State’s important governmental interest in
protecting the public health—specifically, reducing the spread of COVID-19
in order to minimize illness, hospitalizations, and deaths. Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming the
spread of COVID-19 is unquestionably a compelling interest . . . .”).
43
Third, the State’s interest is unrelated to the suppression of free
expression; as explained above, Plaintiffs have not and cannot allege that
their gyms were targeted on the basis of expression.
And fourth, any restrictions on Plaintiffs’ expression were no greater
than essential to further the government’s interest. As the district court
recognized, any limitation on Plaintiffs’ ability to “teach[] and counsel” was
at most de minimis. OB at 45 n.4; ER-25. Like the rest of the world in
spring 2020—including “a public school classroom, a private school
classroom, or [] an adult extension program” (OB at 43)—to the extent that
Plaintiffs wanted to continue to counsel their clients on “health, exercise,
diet and related matters” (ER-89), they could convey the exact same
information on Zoom, over the phone, outside, or in any way other than in
an enclosed space together. Plaintiffs are now free to meet with their
customers whenever and wherever they want. Even if Plaintiffs engaged in
constitutionally protected speech (which they did not), this temporary,
minimal burden on their expression did not come close to violating the First
Amendment.
///
///
44
Privileges or Immunities Clause
Plaintiffs’ claim that the subject restrictions violated a “right to travel”
found within the Privileges or Immunities Clause of the Fourteenth
Amendment fails as a matter of law. ER-27–28; SER-183.
To the extent that the Supreme Court has recognized a constitutional
“right to travel,” it has done so in the context of international travel, or travel
between states. See Saenz v. Roe, 526 U.S. 489, 500 (1999); ER-28. Neither
the Supreme Court nor this Court has recognized a right to intrastate travel,
e.g., a right to travel between one’s home and a local gym. See Nunez by
Nunez v. City of San Diego, 114 F.3d 935, 944 n.7 (9th Cir. 1997). Plaintiffs
acknowledge that they lack any binding authority to support their position.
OB at 49.
Plaintiffs nevertheless ask the Court to announce a new constitutional
right within the Ninth Circuit: that the Privileges or Immunities Clause
“includes the privilege of traveling, not just between States, but within a
single State.” OB at 49. Remarkably, Plaintiffs “make no other argument”
in support of this weighty request. Id. Plaintiffs’ failure to present any
reasoned argument waives any further challenge to the district court’s ruling.
See Brown, 840 F.3d at 1148.
45
In any event, any right to “intrastate travel” is not implicated by the
temporary closure of Plaintiffs’ gyms. Any right to intrastate travel
“protects the right to move from place to place, not the right to access certain
public places.” Hannemann v. Southern Door County School Dist., 673 F.3d
746, 757 (7th Cir. 2012); Williams v. Town of Greenburgh, 535 F.3d 71, 75–
76 (2d Cir. 2008) (“[I]t is clear that the right [to intrastate travel] protects
movement between places and has no bearing on access to a particular
place.”). To the extent California’s orders burdened Plaintiffs, they did so
by closing Plaintiffs’ gyms, not by forbidding travel.22
22
Neither the initial stay-at-home order nor the subsequent public
health orders completely prohibited intrastate travel. The initial emergency
order issued by the Governor on March 19, 2020 required Californians “to
stay home or at their place of residence except as needed to maintain
continuity of operations of the federal critical infrastructure sectors….”
SER-15. It specifically provided that because “[the] supply chain must
continue, and Californians must have access to such necessities as food,
prescriptions, and health care,” when Californians “need to leave their
homes or places of residence, whether to obtain or perform the functions
above, or to otherwise facilitate authorized necessary activities, they should
at all times practice social distancing.” SER-16. In other words, the initial
order allowed individuals to travel for essential needs like food, medicine
and medical care, and for critical infrastructure work. Subsequent orders
discouraged unnecessary travel to slow the spread of COVID-19, but also
stopped short of prohibiting it. See supra notes 4-5. And Plaintiffs have not
pleaded that they were ever prohibited from moving about in public as they
pleased. Accordingly, Plaintiffs have not and cannot plead a complete
prohibition on intrastate travel, or even a material restriction on their
intrastate travel.
46
Due Process Clause
Plaintiffs’ claims based on the procedural and substantive components
of the Due Process Clause of the Fourteenth Amendment fail as a matter of
law. ER-29; SER-184.
a. Procedural due process

Plaintiffs’ claim based on the procedural aspect of the Due Process
Clause fails as a matter of law. ER-29; SER-185.
“To obtain relief on a procedural due process claim, the plaintiff must
establish the existence of (1) a liberty or property interest protected by the
Constitution; (2) a deprivation of the interest by the government; and (3)
lack of process.” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008).
“Ordinarily, due process of law requires an opportunity for some kind
of hearing prior to the deprivation of a significant property interest.”
Samsom v. City of Bainbridge Island, 683 F.3d 1051, 1060 (9th Cir. 2012)
(internal citations and quotations omitted). However, “[g]overnmental
decisions which affect large areas and are not directed at one or a few
individuals do not give rise to the constitutional procedural due process
requirements of individual notice and hearing.” Halverson v. Skagit Cnty.,
42 F.3d 1257, 1261 (9th Cir. 1994). Such actions are “legislative in nature,”
47
so when officials “perform[] [their] responsibilities in the normal manner
prescribed by law,” due process is satisfied and general notice is sufficient.
Id. at 1260-1261. This long-standing rule reflects the reality that “[w]here a
rule of conduct applies to more than a few people, it is impracticable that
everyone should have a direct voice in its adoption.” Bi-Metallic Inv. Co. v.
State Bd. of Equalization, 239 U.S. 441, 445 (1915).
Here, assuming arguendo that the TAC plausibly alleges a deprivation
of Plaintiffs’ property, the district court correctly held that the State of
California was not required to provide each of its 40 million residents notice
and an opportunity to be heard before taking steps to combat the COVID-19
virus. OB at 50-51. California’s public health orders applied to all
businesses and citizens throughout the State. Additionally, they were issued
by the Governor and State Public Health Officer in the ordinary manner
prescribed by law—pursuant to statutory authority—and publicized widely.
See, e.g., Cal. Gov’t Code § 8567(a) (authorizing Governor to issue orders
during a public emergency); Cal. Health & Safety Code § 120140
(authorizing CDPH to issue orders in response to a pandemic). Thus, the
challenged orders were precisely the sort of actions that “do not ‘give rise to
constitutional procedural due process requirements.’” See Gallo v. U.S.
48
Dist. Ct. for Dist. of Ariz., 349 F.3d 1169, 1182 (9th Cir. 2003) (citation
omitted).
Plaintiffs contend that the rule articulated in Halverson for “legislative”
acts applies only literally to acts of a state legislature, not to acts of the
executive branch that have state-wide effect. OB at 51. Plaintiffs appear to
be relying on the following language in Halverson: “when the action
complained of is legislative in nature, due process is satisfied when the
legislative body performs its responsibilities in the normal manner
prescribed by law.” Halverson, 42 F.3d at 1260 (emphasis added; internal
citations and quotations omitted). However, Plaintiffs ignore the next
paragraph, where the court explained that “[i]n seeking to define when a
particular government action is ‘legislative in nature’ we have eschewed
formalistic distinctions between ‘legislative’ and ‘adjudicatory’ or
‘administrative’ government actions and instead focused on the character of
the action, rather than its label.” Id. (internal citations and quotations
omitted). As the court further explained, acts that are “legislative” in
character are ones that “affect large areas and are not directed at one or a few
individuals . . .” Id. at 1261 (deeming as legislative conduct that affected
“[m]any parts of the county, and the properties of thousands of people”); see
Samson, 683 F.3d at 1060 (deeming as legislative ordinances that applied to

49
“all owners of shoreline property” on a particular island); Hotel & Motel
Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 969 (9th Cir. 2003)
(deeming as legislative ordinances that affected “a broad geographic area
and the complete range of hostelries, as opposed to one or a few individuals
or establishments”).
Here, California’s statewide public health orders were much broader
than the orders deemed legislative in Halverson (“thousands of people”),
Samson (“owners of shoreline property”), or Hotel and Motel Association of
Oakland (“a complete range of hostelries”). Because of the scale of the
COVID-19 crisis, the orders of the Governor and Public Health Officer had
state-wide effect, thereby affecting the movements and activities of millions
of people. Such orders undoubtedly “affect[ed] large areas” were not
“directed at one or a few individuals,” and were therefore “legislative” in
nature. Halverson, 42 F.3d at 1260. Accordingly, the State was not required
to provide individualized notice and hearings to Plaintiffs before issuing the
public health orders, and this claim was properly dismissed.
b. Substantive due process

Plaintiffs’ claim based on the substantive aspect of the Due Process
Clause fails as a matter of law. ER-29; SER-186.
50
“Substantive due process forbids the government from depriving a
person of life, liberty, or property in such a way that shocks the conscience
or interferes with the rights implicit in the concept of ordered liberty.”
Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (internal citations and
quotations omitted). To state a claim for violation of substantive due
process rights, a plaintiff first must plead that a governmental action
infringes a fundamental right. Slidewaters LLC v. Wash. State Dep't of Lab.
& Indus., __ F.4th __, No. 20-35634, 2021 WL 2836630, at *7 (9th Cir. July
8, 2021). Where, as here, no fundamental right is pleaded, a plaintiff must
plead how the challenged action fails to survive rational basis review. Id.
Plaintiffs satisfied neither requirement in this case.
First, Plaintiffs failed to allege the violation of any fundamental right.
The range of interests protected by substantive due process is narrow and
largely limited to fundamental liberty interests such as marriage, procreation,
child rearing, and bodily integrity—none of which are at issue here.
Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018). Plaintiffs argue that
“several fundamental rights have been, and are being impinged by the
Orders complained of, including freedom of speech and freedom of
association, the right to property, and the right to engage in an occupation.”
OB at 52. As explained above, California’s temporary restrictions on gyms

51
did not violate Plaintiffs’ rights of free speech or association. See supra at p.
35. The right to open one’s property to customers is not a fundamental right.
Slidewaters LLC, 2021 WL 2836630, at *7. And “[t]he right to pursue a
common calling is not considered a fundamental right. Id.; see Tandon v.
Newsom, 992 F.3d 916, 930 (9th Cir. 2021) (“We have ‘never held that the
right to pursue work is a fundamental right,’…”) (quoting Sagana v.
Tenorio, 384 F.3d 731, 743 (9th Cir. 2004)), disapproved on other grounds,
141 S. Ct. 1294 (2021); see also id. at 930 (Bumatay J., concurring and
dissenting) (agreeing that the appellants had not demonstrated that “the
State’s commercial restrictions violate due process or equal protection”).
Because only economic rights are at issue here, the State’s public health
orders are reviewed under a deferential rational basis standard. Slidewaters,
2021 WL 2836630, at *7.
Second, Plaintiffs failed to viably plead that the challenged orders fail
the “very narrow” rational basis review test, under which courts “do not
require that the government’s action actually advance its stated purposes, but
merely look to see whether the government could have had a legitimate
reason for acting as it did.” Sagana, 384 F.3d at 743 (citation omitted); see
Slidewaters LLC, 2021 WL 2836630, at *7 (upholding similar restrictions
under rational basis review). Indeed, on appeal, Plaintiffs do not even

52
dispute—and have therefore waived a challenge to—the district court’s
conclusion that California’s temporary restrictions on gyms “clearly pass
muster under a rational basis review.” ER-32 (incorporating SER-186–
187); see Brown, 840 F.3d at 1148 (unbriefed argument waived). Plaintiffs’
failure to challenge this ruling is particularly fatal to their claims because,
under rational basis review, it is Plaintiffs’ burden “to disprove the
rationality of the relationship between the classification and the purpose.’”
U.S. v. Navarro, 800 F.3d 1104, 1113 (9th Cir. 2015) (citation omitted).
Plaintiffs have not even attempted to meet this burden.
Even if Plaintiffs had challenged the district court’s ruling, it was
correct and should be affirmed. California had “a legitimate state interest in
preventing the spread of COVID-19, a deadly contagious disease.”
Slidewaters, 2021 WL 2836630, at *7. In spring 2020, COVID-19 had no
cure or vaccine, could be spread asymptomatically, and was spreading
rapidly in indoor areas where people congregated together. See supra pp. 4-
7. It was not irrational for California to create a state-wide plan and draw
lines between types of businesses based on the risk that their operation
would lead to increased community transmission of COVID-19.
Slidewaters, 2021 WL 2836630, at *8; see supra pp. 4-7. And it was not
irrational for California “to include gyms within the general prohibition on
53
large indoor gatherings” because of the nature of COVID-19 transmission
and the fact that it was plausible to view gyms as high-risk environments for
the transmission of COVID-19. ER-32 (incorporating SER-186–187, SER-
188); SER-100 (relying on recent studies showing that “the risk of
transmission is exacerbated in indoor spaces, particularly when lacking
appropriate ventilation,” where groups of people “mix with others for
prolonged periods of time”); SER-108 (same); see also League of Indep.
Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App'x 125, 128 (6th
Cir. 2020) (“The idea that heavy breathing and sweating in an enclosed
space containing many shared surfaces creates conditions likely to spread
the virus is a paradigmatic example of “rational speculation” that fairly
supports the Governor’s treatment of indoor fitness facilities.”).
Plaintiffs may disagree with the classifications set forth in the Blueprint
and other public health orders, and question “‘the wisdom, fairness, or logic
of legislative choices,’” but rational basis review does not authorize
Plaintiffs or the Court to “substitute [their] personal notions of good public
policy for those” of elected officials, Schweiker v. Wilson, 450 U.S. 221, 234
(1981), or to “‘judge the wisdom, fairness, or logic of legislative choices,’”
Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 815 (9th Cir. 2016)
(quoting F.C.C. v. Beach Commc’ns, 508 U.S. 307, 313 (1993)). Where, as
54
here, there is any “plausible reason” for the State’s action, the “inquiry is at
an end.” F.C.C., 508 U.S. at 313-314. That is particularly true in light of
the deference to which state governments are entitled generally in public-
health management (see Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 74
(per curiam)) and specifically in making decisions in areas of scientific
uncertainty (see, e.g., Marshall v. United States, 414 U.S. 417, 427 (1974)).

Equal Protection Clause
Plaintiffs’ claim based on the Equal Protection Clause of the Fourteenth
Amendment fails as a matter of law. ER-31; SER-187.
The Equal Protection Clause prohibits a state from denying any person
within its jurisdiction the equal protection of the laws. U.S. Const. amend.
XIV, § 1; City of Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432, 439
(1985); Plyler v. Doe, 457 U.S. 202, 216 (1982) (“[A]ll persons similarly
circumstanced shall be treated alike.”). Differential treatment may violate
the Equal Protection Clause only if (1) two similarly situated groups are
treated differently, and (2) the differential treatment fails the applicable
standard of constitutional scrutiny. See Gallinger v. Becerra, 898 F.3d
1012, 1016 (9th Cir. 2018).
55
Where a law or state action is based upon a suspect classification, such
as race, ancestry, or alienage, Jackson Water Works, Inc. v. Public Utils.
Comm’n of State of Cal., 793 F.2d 1090, 1093 (9th Cir. 1986), or burdens a
fundamental right such as privacy, marriage, voting, travel, or freedom of
association, Plyler, 457 U.S. at 217, strict scrutiny applies. Otherwise, state
action “is presumed to be valid” and will be upheld if it is “rationally related
to a legitimate [government] interest.” U.S. v. Harding, 971 F.2d 410, 412
(9th Cir. 1992).
Here, as set forth above, Plaintiffs have not identified any fundamental
right that is at issue. See supra at pp. 51-52; OB at 53-57. Thus, rational
basis review—whether the public health orders are “rationally related to a
legitimate government interest” (Ball v. Massanari, 254 F.3d 817, 823 (9th
Cir. 2001))—is the appropriate level of constitutional scrutiny for analyzing
Plaintiffs’ claims. Tandon, 992 F.3d at 930, disapproved on other grounds,
141 S. Ct. 1294.
Plaintiffs again have not challenged the district court’s conclusion that
California’s restrictions on gyms easily survived rational basis scrutiny.
Thus, Plaintiffs have waived further challenge to the court’s rational-basis
analysis which, in any event, was correct.
56
Instead, Plaintiffs argued below, and allege again here, that the
Defendants violated the Equal Protection Clause by temporarily closing
gyms while “countenancing and encouraging” the “George Floyd” protests,
based on the “preference of State and Local Defendants . . . for the messages
of the George Floyd protestors.” OB at 53 (emphasis in original). But
Plaintiffs’ theory, which is not clear, is not viable in any case:
To the extent that Plaintiffs are arguing that Defendants discriminated
against them based on the content of their speech, their argument fails
because, as explained above, Plaintiffs’ gyms were not targeted because of
their speech; they were temporarily restricted to prevent the spread of
COVID-19. Defendants did not discriminate between speakers based on the
content of their speech.
To the extent that Plaintiffs are arguing that Defendants treated their
indoor gym operations23 worse than other outdoor activities, that argument
fails because Plaintiffs’ indoor gym operations were not similarly situated to
outdoor activities. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th
Cir. 1995) (“[I]t is necessary to identify a similarly situated class against
which plaintiff’s class can be compared.”) Outdoor activities and indoor
23
Plaintiffs did not have any outdoor operations that might be
comparable to outdoor protests. ER-88 (¶ 257).
57
activities were treated differently based on differences in transmissibility
between indoor settings and outdoor settings; hence, under the Blueprint,
gyms were always allowed to operate outdoors, no matter how serious the
community spread was. See supra note 5 and accompanying text.

Contracts Clause
Plaintiffs’ claim based on the Contracts Clause fails as a matter of law.
ER-33.
The Contracts Clause provides that “[n]o state shall ... pass any ... Law
impairing the Obligation of Contracts.” U.S. Const. Art. I, § 10, cl. 1.
“Despite the sweeping terms of its literal text, the Supreme Court has
construed this prohibition narrowly in order to ensure that local governments
retain the flexibility to exercise their police powers effectively.” Matsuda v.
City of Honolulu, 512 F.3d 1148, 1152 (9th Cir. 2008) (citations omitted);
see also Energy Reserves Grp., Inc. v. Kansas Power & Light Co., 459 U.S.
400, 410 (1983) (“Although the language of the Contract Clause is facially
absolute, its prohibition must be accommodated to the inherent police power
of the State to safeguard the vital interests of its people.”) (internal citations
and quotations omitted). The government “must possess broad power to
adopt general regulatory measures without being concerned that private
58
contracts will be impaired, or even destroyed, as a result.” United States
Trust Co. v. New Jersey, 431 U.S. 1, 22 (1977). The police power of the
states to protect the lives, health, peace, safety, comfort, morals, and general
welfare “is paramount to any rights under contracts between individuals.”
Manigault v. Springs, 199 U.S. 473, 480 (1905).
To determine whether a law crosses the constitutional line, courts apply
a two-step test. Sveen v. Melin, 138 S. Ct. 1815, 1821 (2018). The threshold
inquiry is whether the state law has “operated as a substantial impairment of
a contractual relationship.” Allied Structural Steel Co. v. Spannaus, 438
U.S. 234, 244 (1978). If a substantial impairment exists, “the inquiry turns
to … whether the state law is drawn in an ‘appropriate’ and ‘reasonable’
way to advance ‘a significant and legitimate public purpose.’” Sveen, 138 S.
Ct. at 1822 (quoting Energy Reserves Grp., 459 U.S. 400 at 411–412).
“Unless the State itself is a contracting party, as is customary in reviewing
economic and social regulation, courts properly defer to legislative judgment
as to the necessity and reasonableness of a particular measure.” Id. at 412-
13 (internal citations, quotations, and formatting omitted).
Here, the temporary nature of the public health orders and the
availability of outdoor, video, and telephonic operations meant the public
health orders did not constitute a “substantial impairment” of Plaintiffs’

59
contractual relationships. At most, the State’s public health orders
“effect[ed] simply a temporary alteration” of the contracts between Plaintiffs
and their customers, not “severe, permanent, and immediate change in [their]
relationships—irrevocably and retroactively.” Allied Structural Steel, 438
U.S. at 250.
But even assuming arguendo the temporary closure of gyms
substantially impaired Plaintiffs’ contracts with their customers, Plaintiffs
nevertheless cannot plead a plausible Contracts Clause claim because they
cannot satisfy the means/end inquiry, under which the Court “balances the
contractual rights of the individual against the essential attributes of
sovereign power necessarily reserved by the States to safeguard the welfare
of their citizens.” Univ. of Haw. Prof. Assembly v. Cayetano, 183 F.3d
1096, 1107 (9th Cir. 1999) (internal citations and quotations omitted).
Combatting COVID-19 was undoubtedly a legitimate public purpose. And,
as explained above, the temporary closure of many indoor spaces, including
gyms—where people from different households congregated and breathed
heavily over extended periods of time—to protect the health and safety of
California residents was appropriately or reasonably related to the legitimate
purpose of stemming the spread of COVID-19. Energy Reserves Group,
459 U.S. at 411–412; see supra at pp. 53-54.

60
This determination of California’s public health officials based on the
science known to them in spring 2020 was entitled to deference. Energy
Reserves Group, 459 U.S. at 412-13. Indeed, the COVID-19 crisis—which
suddenly threatened the health and economy of the State and Nation—was
the quintessential emergency situation in which private contracts must give
way to the broader public’s need to “exercise [its] police powers
effectively.” Matsuda, 512 F.3d at 1152; see also Home Bldg. & Loan Ass’n
v. Blaisdell, 290 U.S. 398, 439 (1934) (recognizing that contracts must give
way to the State’s mitigation of “a great public calamity such as fire, flood,
or earthquake”); East N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 233 (1945)
(upholding 12-year-long mortgage moratoria “to counteract the virulent
effects of the [Great] [D]epression”); Campanelli v. Allstate Life Ins. Co.,
322 F.3d 1086, 1099 (9th Cir. 2003) (upholding law reviving insurance
claims for earthquake victims).
Rather than provide reasoned argument to the contrary, Plaintiffs
effectively argue that no Contracts Clause claim should ever be subject to
dismissal at the pleadings stage because Plaintiffs should not be required to
“plead facts that would disestablish the State and Local Defendants’
affirmative defenses of public purpose, reasonability, and necessity.” OB at
58. Plaintiffs cite no authority for this proposition, and it is contradicted by

61
numerous cases in which courts have examined, at the pleadings stage,
whether the plaintiffs have plausibly alleged a violation of the Contracts
Clause. See, e.g., Watters v. Bd. of Sch. Directors of the City of Scranton,
975 F.3d 406, 413-16 (3rd Cir. 2020) (examining public purpose,
reasonableness, and necessity); In re The Financial Oversight & Mngmt. Bd.
for Puerto Rico, 979 F.3d 10, 16-20 (1st Cir. 2020), petition for cert. filed,
__ U.S.L.W. __ (Apr. 20, 2021) (No. 20-1466) (same); Crossley v.
California, 479 F. Supp. 3d 901, 920 (S.D. Cal. 2020) (same); Olson v.
Bonta, No. CV 19-10956-DMG RAOx), 2021 WL 3474015, at *8 (C.D. Cal.
Jul. 16, 2021) (same).
7. Even if they were not barred by sovereign immunity,

the TAC’s state-law claims fail to state plausible
claims for relief
As explained above, Plaintiffs’ state-law claims against Defendants
were subject to dismissal because federal courts lack the power to order state
officials to act based on state-law claims. See supra at p. 30. But even if the
Court had jurisdiction over these claims, they would fail as a matter of law.
a. “Liberty clause” of the California Constitution

Count Seven of the TAC asserted a violation of the “right to liberty”
component of article I, section 1 of the California Constitution. ER-103–
106; see Cal. Const., art. I, § 1. The district court correctly held that
62
Plaintiffs failed to state a claim under this provision of state law. ER-34
(incorporating SER-188). The California Constitution’s guarantee of liberty
is not “absolute and do[es] not operate as a curtailment on the basic power of
the Legislature to enact reasonable police regulations.” Nat. Org. for
Reform of Marijuana Laws v. Gain, 100 Cal. App. 3d 586, 598 (1979). For
the reasons articulated above, California’s temporary restrictions on gyms
for the purpose of stemming the spread of COVID-19 had a minimal effect
on Plaintiffs’ personal liberty; as the district court found, Plaintiff Sean
Covell “is not and has never been restrained from leaving his home.” ER-
34; see supra note 22 (describing scope of the “Stay-at-Home” Order). And
to the extent the State’s orders had any effect on Plaintiffs’ personal liberty,
the orders were justified by compelling State interests and were thus not
“irrational.” NORML, 100 Cal. App. 3d at 598.
b. Equal Protection Clause of the California

Constitution
Count Eight of the TAC asserted a violation of the Equal Protection
Clause found in article I, section 7 of the California Constitution. ER-103–
107. Equal protection challenges under the Fourteenth Amendment and
California Constitution are subject to the same analysis. See Kenneally v.
Med. Bd., 27 Cal. App. 4th 489, 495 (1994); Manduley v. Superior Ct., 27
63
Cal. 4th 537, 571-72 (2002). Thus, as the district court recognized,
Plaintiffs’ state law equal protection claim failed for the same reasons the
federal claims failed. ER-32–33; see supra at p. 55.
CONCLUSION
Plaintiffs’ appeal should be dismissed because this case is moot. In the
alternative, the district court’s order should be affirmed.
Dated: August 16, 2021 Respectfully submitted,
ROB BONTA
Attorney General of California
THOMAS S. PATTERSON
Senior Assistant Attorney General
BENJAMIN M. GLICKMAN
Supervising Deputy Attorney General
ANDREA M. SCHOOR-WEST
Deputy Attorney General
/S/ JOHN W. KILLEEN
JOHN W. KILLEEN
Attorneys for Defendants-Appellees
Governor Gavin Newsom, Attorney General
Rob Bonta, and CDPH Director Tomás
Aragón
SA2020304814
35379411.docx
64
20-17362

SEAN COVELL,
v.

as the Governor of California; et al.,
ADDENDUM TO ANSWERING BRIEF OF STATE DEFENDANTS-

APPELLEES
TABLE OF CONTENTS
U.S. Const. Art. I, § 10, cl. 1..................................................................66

U.S. Const., amend. I..............................................................................66
U.S. Const., amend. V............................................................................66
U.S. Const., amend. XIV, § 1.................................................................66
Cal. Const., art. I, § 1..............................................................................66
Cal. Const., art. I, § 7, subsection (a)......................................................67
65
U.S. Const. Art. I, § 10, cl. 1
No State shall . . . pass any . . . Law impairing the Obligation

of Contracts . . . .
U.S. Const., amend. I
Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
U.S. Const., amend. V
No person shall . . . be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken
for public use, without just compensation.
U.S. Const., amend. XIV, § 1
All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
Cal. Const., art. I, § 1
All people are by nature free and independent and have

inalienable rights. Among these are enjoying and defending
life and liberty, acquiring, possessing, and protecting property,
and pursuing and obtaining safety, happiness, and privacy.
///
///
66
Cal. Const., art. I, § 7, subsection (a)
A person may not be deprived of life, liberty, or property

without due process of law or denied equal protection of the
laws.
67
20-17362

SEAN COVELL,
v.

as the Governor of California; et al.,
STATEMENT OF RELATED CASES

To the best of our knowledge, there are no related cases.
Dated: August 16, 2021 Respectfully Submitted,
ROB BONTA
Attorney General of California
/S/ JOHN W. KILLEEN
JOHN W. KILLEEN
Attorneys for Defendants-Appellees Governor
Gavin Newsom, Attorney General Rob Bonta,
and CDPH Director Tomás Aragón
68
UNITED STATES COURT OF APPEALS
Form 8. Certificate of Compliance for Briefs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
9th Cir. Case Number(s) 20-17362
I am the attorney or self-represented party.
This brief contains 13,241 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
32(a)(5) and (6).
I certify that this brief (select only one):
[ x ] complies with the word limit of Cir. R. 32-1.
[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5),
Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.
[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
only one):
[ ] it is a joint brief submitted by separately represented parties;
[ ] a party or parties are filing a single brief in response to multiple briefs; or
[ ] a party or parties are filing a single brief in response to a longer joint brief.
[ ] complies with the length limit designated by court order dated _____________.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature /s/ John W. Killeen Date August 16, 2021

(use “s/[typed name]” to sign electronically-filed documents)
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 8 Rev. 12/01/18
CERTIFICATE OF SERVICE
Case Name: Best Supplement Guide, LLC. Case No. 20-17362
et al. v. Gavin Newsom, et al.
[APPEAL]
I hereby certify that on August 16, 2021, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
ANSWERING BRIEF OF STATE DEFENDANTS-APPELLEES
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on August 16,
2021, at Sacramento, California.
John W. Killeen /s/ John W. Killeen

Declarant Signature
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20-17362

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEST SUPPLEMENT GUIDE, LLC and

GAVIN NEWSOM, in his official capacity

On Appeal from the United States District Court

ANSWERING BRIEF OF STATE

2. The TAC does not state a claim for a

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