Second Emergency Motion for TRO and Preliminary Injunction — Vitolo v. Guzman (E.D. Tenn.)

Record facts

UNITED STATES DISTRICT COURT · No. 3:21-cv-00176-TRM-DCP · Doc. 39 · 2021-06-02 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TENNESSEE 
 
 
ANTONIO VITOLO, JAKE’S BAR AND GRILL,  
LLC, BYRON SACKETT, HOMESTEADS  
MANAGEMENT, LLC, KEVIN L. PEARSON,  
S & K SOUP CO., ALFRED CASTIGLIONI,  
THE 579 LLC, CHARDONNAYS INC., ZINFANDEL  
LLC, DENIS FLANAGAN, 3KAD LLC 
 
 
Plaintiffs, 
 
v. 
 
 
 
 
 
 
 
 
Case No. 3:21-cv-176 
 
 
ISABELLA CASILLAS GUZMAN,  
 
Defendant. 
PLAINTIFFS’ SECOND EMERGENCY MOTION FOR A TEMPORARY 
RESTRAINING ORDER AND PRELIMINARY INJUNCTION 
Plaintiffs Byron Sackett, Homesteads Management, LLC, Kevin L. Pearson, S 
& K Soup Co., Alfred Castiglioni, The 579 LLC, Chardonnays Inc., Zinfandel LLC, 
Denis Flanagan, 3kad LLC (Additional Plaintiffs) move, pursuant to Federal Rule of 
Civil Procedure 65, for a temporary restraining order and/or preliminary injunction, 
ordering Defendant to pay Additional Plaintiffs’ grant applications, if approved, 
before all other later-filed applications, without regard to processing time or the 
applicants’ race or sex—exactly the same relief the Sixth Circuit ordered with respect 
to Plaintiffs Antonio Vitolo and Jake’s Bar and Grill, LLC (Original Plaintiffs).1    
 
1 Plaintiffs continue to believe that a national injunction is appropriate, and hereby request 
one, for the reasons previously explained, and to avoid further emergency injunction requests like this. 
See Dkt. 31-1:19–21. However, this Court should, at the very least, issue an injunction applicable to 
the Additional Plaintiffs.  
Case 3:21-cv-00176-TRM-DCP   Document 39   Filed 06/02/21   Page 1 of 4   PageID #: 320

 
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The grounds for this motion are set forth in the Sixth Circuit’s opinion issued 
on May 27, 2021, see Vitolo v. Guzman, 2021 WL 2172181 (6th Cir. May 27, 2021), in 
the prior briefing submitted by Original Plaintiffs in support of a temporary 
restraining order and preliminary injunction, see Dkts. 12-2, 31-1, in the declarations 
attached as exhibits to this motion, and in the additional arguments below.  
Original Plaintiffs, Antonio Vitolo and Jake’s Bar and Grill, LLC, filed this 
lawsuit on May 12, 2021, and immediately sought a temporary restraining order and 
preliminary injunction. Dkts. 1, 11, 12. After this Court denied each, Dkts. 16, 24, 32, 
Plaintiffs appealed on an emergency basis to the Sixth Circuit and sought an 
injunction pending appeal. Dkts. 25, 33; Mot. for Inj. Pending Appeal, Dkt. 4, No. 21-
5517 (6th Cir., May 20, 2021). On May 27, the Sixth Circuit issued an opinion and 
order granting an injunction directing the government to “fund the plaintiffs’ grant 
application, if approved, before all later-filed applications, without regard to 
processing time or the applicants’ race or sex.” Vitolo, 2021 WL 2172181, at *9. The 
Sixth Circuit concluded that Plaintiffs “will win on the merits of their constitutional 
claim”—both as to race and sex discrimination—and therefore were entitled to an 
injunction. Id. at *8.  
Just like Vitolo and Jake’s Bar, Additional Plaintiffs also filed applications for 
grants from the Restaurant Revitalization Fund on the first day the application 
period opened, but have yet to be approved, due to Defendant’s unconstitutional 
reordering of applications based on race and gender. Castiglioni Decl. (Ex. 1) ¶¶ 8–
11; Flanagan Decl. (Ex. 2) ¶¶ 8–11; Pearson Decl. (Ex. 3) ¶¶ 8–11; Sackett Decl. (Ex. 
Case 3:21-cv-00176-TRM-DCP   Document 39   Filed 06/02/21   Page 2 of 4   PageID #: 321

 
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4) ¶¶ 8–11. Thus, Additional Plaintiffs are entitled to an injunction for the exact same 
reasons as the Original Plaintiffs, and this Court should immediately enter such an 
injunction based on the Sixth Circuit’s decision. Defendant should also be ordered to 
immediately place funds in reserve to cover all amounts requested by Additional 
Plaintiffs, as Defendant did previously with Vitolo and Jake’s Bar. See Dkt. 30:15; 
See Vitolo v. Guzman, No. 21-5517, Dkt. 13:4 (Decl. of Miller, ¶6, May 24, 2021). 
The government is likely to argue, as it did to the Sixth Circuit, that an 
injunction is now unnecessary because the priority period has ended. The Sixth 
Circuit rejected that argument because the government’s own declaration, submitted 
to that court, indicated that later-filed priority applications had received a 
“processing head start,” creating a distinct possibility that priority applicants could 
completely deplete the fund before any white, male applicants received a shot at any 
funds. Vitolo, 2021 WL 2172181, at *3. 
After the Sixth Circuit issued its decision, the government submitted a 
supplemental declaration in an attempt to rebut the obvious implication of its prior 
declaration, see Vitolo v. Guzman, No. 21-5517, Dkt. 23 (6th Cir., May 28, 2021), but 
the latest declaration still fails to explain how SBA is processing applications and 
what determines which applications get paid and which do not. Even its latest 
declaration indicates that SBA is concurrently processing “all pending applications—
both priority and non-priority,” and when (or whether) an applicant gets paid depends 
on how quickly its application is processed. Id. ¶¶ 6–7. Thus, if SBA is continuing to 
process any later-filed, priority applications, such that those priority applications 
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might get paid before any earlier-filed non-priority applications, then the priority 
period continues to have an effect based on unconstitutional race and gender 
discrimination. As the Sixth Circuit recognized, there is an “obvious solution to 
this”—“fund grants in the order they were received—without regard to priority 
status,” and “without regard to processing time.” Vitolo, 2021 WL 2172181, at *3, *9. 
If the SBA is already processing—and funding—applications in the order that they 
were received, “without regard to processing time or the applicants’ race or sex,” then 
it should not oppose an injunction, as it will not require anything different from SBA.2  
Given the thoroughness of the record, Plaintiffs do not request a hearing. 
Dated: June 2, 2021 
 
WISCONSIN INSTITUTE FOR LAW & LIBERTY 
Rick Esenberg 
rick@will-law.org 
/s/ Daniel P. Lennington 
Daniel P. Lennington (pro hac vice) 
dan@will-law.org 
Luke N. Berg (pro hac vice) 
luke@will-law.org 
330 E. Kilbourn Ave., Suite 725 
Milwaukee, WI 53202 
Phone: (414) 727-9455  
Fax: (414)727-6385 
  
Attorneys for Plaintiffs 
 
 
2 If the government continues to assert that an injunction is unnecessary without clearly 
explaining what it is doing, this Court should enter a short-term injunction and set an expedited 
discovery period (a few days) to allow Plaintiffs to submit a few interrogatories to the government to 
get to the bottom of how the SBA is processing and funding applications.  
Case 3:21-cv-00176-TRM-DCP   Document 39   Filed 06/02/21   Page 4 of 4   PageID #: 323

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