Emergency Motion for Injunction Pending Appeal — Vitolo v. Guzman

Record facts

UNITED STATES DISTRICT COURT · No. 3:21-cv-00176-TRM-DCP · Doc. 23 · 2021-05-19 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TENNESSEE 
 
 
JAKE’S BAR AND GRILL, LLC, and 
ANTONIO VITOLO, 
 
 
Plaintiffs, 
 
v. 
 
 
 
 
 
 
 
 
Case No. 3:21-cv-176 
 
 
ISABELLA CASILLAS GUZMAN,  
 
Defendant. 
 
PLAINTIFFS’ EMERGENCY MOTION FOR AN 
INJUNCTION PENDING APPEAL 
 
Yesterday, the Small Business Administration announced that it has 
disbursed over $6 billion (more than 20%) of the Restaurant Revitalization Fund. 
SBA, Last Call: Administrator Guzman Announces Final Push for Restaurant 
Revitalization Fund Applications (May 18, 2021).1 Given that Defendant is rapidly 
depleting this fund, Plaintiffs plan to file, tomorrow, an emergency appeal with the 
Sixth Circuit of this Court’s order denying Plaintiffs’ motion for a TRO. Dkt. 20.  
Accordingly, Plaintiffs hereby move, pursuant to Federal Rule of Appellate 
Procedure 8, for an injunction pending appeal, prohibiting Defendant from paying out 
any more grants from the Restaurant Revitalization Fund, unless Defendant begins 
processing applications and paying grants in the order that the applications were 
 
1 https://www.sba.gov/article/2021/may/18/last-call-administrator-guzman-announces-final-
push-restaurant-revitalization-fund-applications 
Case 3:21-cv-00176-TRM-DCP   Document 23   Filed 05/19/21   Page 1 of 4   PageID #: 181

 
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received, without regard to the race or gender of the applicants. The grounds for this 
motion are set forth fully in Plaintiffs’ briefs and argument in support of a TRO. Given 
that this Court has already denied the TRO, Plaintiffs realize this Court will likely 
deny an injunction pending appeal for the same reasons. However, Federal Rule of 
Appellate Procedure 8 requires Plaintiffs to ask this Court first, hence this motion. 
Plaintiffs respectfully request a decision on this motion by tomorrow at 2 pm.  
We respectfully submit that this type of relief is warranted under the unusual 
circumstance of this case. Congress has created a presumption that minority or 
female-owned businesses in the country falling within the rather broad definition of 
“socially and economically disadvantaged’ are entitled to a preference over virtually 
every such business owned by a white male. Even if it is theoretically possible for a 
white-male-owned business to overcome this race-and-gender based presumption, 
businesses in Plaintiffs’ position have still been disadvantaged due to their race. See 
Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 307 (2013), Grutter v. Bollinger, 539 
U.S. 306, 326 (2003); Gratz v. Bollinger, 539 U.S. 244, 270 (2003). The United States 
Supreme Court has made clear that the need to eliminate a racial disparity or create 
racial balance among beneficiaries of a government program does not constitute a 
compelling interest that might justify a racial preference program (as the defendant 
concedes this to be). Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 
U.S. 701, 729–31 (2007); Shaw v. Hunt, 517 U.S. 899, 909–910 (1996); Adarand 
Constructors, Inc. v. Pena, 515 U.S. 200, 220–22 (1995); City of Richmond v. J.A. 
Croson Co., 488 U.S. 469, 505–06 (1989). 
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 While a particularized finding of discrimination that is sufficiently focused 
and with a sufficiently ascertainable effect (to determine how much of a preference 
can be justified) may be compelling, Shaw, 517 U.S. at 909–10, the United States 
Supreme Court has repeatedly made clear that allegations of societal (i.e., “systemic” 
or “structural” discrimination), id.; Parents Involved, 551 U.S. at 731, Croson, 488 
U.S. at 498–99, or even allegations of generalized discrimination within an industry, 
Shaw, 517 U.S. at 909–10; Parents Involved, 551 U.S. at 731, do not create a 
compelling interest. Nor has defendant offered any explanation as to why a non-racial 
alternative—say one that created a priority for those who had not participated in 
earlier relief programs or who are in a weaker financial position—would not have 
sufficed.  
 
 
 
 
Case 3:21-cv-00176-TRM-DCP   Document 23   Filed 05/19/21   Page 3 of 4   PageID #: 183

 
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Dated: May 19, 2021 
WISCONSIN INSTITUTE FOR LAW & LIBERTY 
Rick Esenberg 
rick@will-law.org 
/s/ Daniel P. Lennington 
Daniel P. Lennington 
dan@will-law.org 
Luke N. Berg 
luke@will-law.org 
330 E. Kilbourn Ave., Suite 725 
Milwaukee, WI 53202 
Phone: (414) 727-9455  
Fax: (414)727-6385 
 
 
/s/ Matthew J. McClanahan 
Matthew J. McClanahan (BPR #036867) 
McClanahan & Winston, PC 
PO Box 51907 
Knoxville, Tennessee 37950 
Telephone:  (865) 347-3921 
Fax:  (865) 444-0786 
Email: matt@tennadvocate.com 
 
Attorneys for Plaintiffs 
Case 3:21-cv-00176-TRM-DCP   Document 23   Filed 05/19/21   Page 4 of 4   PageID #: 184

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