NDNY Continues to See Its Fair Share of COVID-19 Litigation

Since the publication of the Fall 2020 issue of the NDNY-FCBA newsletter, five district judges and one magistrate judge in the Northern District have issued decisions in seven cases arising from New York State’s response to the pandemic. In particular, the cases regarded the following responses:

  • capacity limits on gun retailers;
  • capacity limits on religious gatherings;
  • capacity limits on weddings at indoor restaurants;
  • confinement of medically vulnerable prisoners;
  • mask mandate in K-12 schools;
  • restrictions on displays and advertisements by firework companies;
  • restrictions on sports and recreation activities at bars and restaurants; and
  • vaccination mandate on health care workers.

Capacity Limits on Gun Retailers

One year and three months after U.S. District Judge Mae A. D’Agostino had granted Defendants’ motion for judgment on the pleadings for lack of standing in National Rifle Association of America v. Cuomo, 20-CV-0385, 2020 WL 4732110 (N.D.N.Y. Aug. 14, 2020), the Second Circuit affirmed in part and dismissed the appeal in part as moot, because “[t]here is no reasonable prospect that the Governor’s rescinded order will be revived, especially since the New York State legislature curtailed the Governor’s emergency powers to reissue COVID-19 restrictions.” National Rifle Association of America v. Hochul, No. 20-3187-cv, Summary Order (2d Cir. Nov. 16, 2021).

Capacity Limits on Religious Gatherings

In Soos v. Cuomo, 498 F. Supp.3d 318 (N.D.N.Y. Oct. 30, 2020) (Sharpe, J.), fourteen religious practitioners and worshippers (“Plaintiffs”) sued the Governor of New York and nine other government officials and entities (“Defendants”) based on the Governor’s issuance of Executive Order 202.68 establishing the so-called “Cluster Action Initiative,” which allegedly disparately treated religious gatherings on the one hand and essential businesses (and/or exempted non-essential businesses and gatherings) on the other hand, imposing capacity limitations on attendance at the former but not doing so on attendance at the latter. Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the First Amendment’s Free Exercise, Free Speech, and Free Assembly Clauses, and their rights under the Fourteenth Amendment’s Equal Protection Clause.

After successfully moving for a temporary restraining order and preliminary injunction on June 26, 2020, Plaintiffs moved again for a temporary restraining order and preliminary injunction.

Following oral argument, Senior U.S. District Judge Gary L. Sharpe denied the renewed motion, finding Plaintiffs unlikely to succeed on their claims under Jacobson v. Massachusetts, 197 U.S. 11 (1905), and its progeny, pursuant to either the strict-scrutiny standard or the rational-basis standard. Judge Sharpe explained that “[t]he [Cluster Action] Initiative and the surrounding circumstances do not present the issues that existed in June when the court granted plaintiffs’ request for a preliminary injunction. . . . To find in plaintiffs’ favor under these circumstances would be to second-guess the State’s medical experts and scientific and public health findings with respect to what constitutes an ‘essential’ business, which would run afoul of Jacobson and its progeny.”

Sixty-seven days after the issuance of the decision, the Second Circuit vacated and remanded it for further proceedings in light of the Circuit’s decision in Agudath Israel of America v. Cuomo, Nos. 20-3572, 20-3590 (2d Cir. Dec. 28, 2020) (holding 25% and 33% capacity limitations invalid). On June 10, 2021, and August 24, 2021, Judge Sharpe issued Orders approving the parties’ stipulations of settlement and dismissal.

Capacity Limits on Weddings at Indoor Restaurants

In Bill & Ted’s Riviera, Inc., 494 F. Supp.3d 238 (N.D.N.Y. Oct. 13, 2020) (Scullin, J.), the owners of two wedding venues (“Plaintiffs”) brought an action against the Governor of New York and four other government officials and entities (“Defendants”) based on the Governor’s issuance of Executive Orders 202, 202.10, 202.31, 202.34, 202.42, and 202.45, which allegedly disparately treated wedding gatherings and restaurant service by placing a 50-person limit on non-essential gatherings (including weddings at indoor restaurants) while permitting larger gatherings for other purposes (including indoor restaurant patronage). Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the Fourteenth Amendment’s Equal Protection Clause and Article 78 of New York Civil Practice Law and Rules.

Plaintiffs moved for a preliminary injunction and class certification, and Defendants cross-moved to dismiss Plaintiffs’ Complaint for failure to state a claim.

Following oral argument, Senior U.S. District Judge Frederick J. Scullin Jr. denied Plaintiffs’ motion for a preliminary injunction because of their failure to demonstrate a clear or substantial likelihood of success on the merits of their equal protection claim, finding that, “[b]ased on the record in this case, the Court cannot conclude that the restrictions that Defendants have implemented in Executive Order 202.45 and the rules and regulations that implement that Executive Order are arbitrary or oppressive or bear no substantial relationship to the public safety concerns, i.e., the spread of COVID-19, that they are intended to address.”

Judge Scullin denied without prejudice Plaintiffs’ motion for class certification because, “[a]lthough Plaintiffs provide legal argument to support their motion for class certification, they have not provided specific information [e.g., affidavits and other documentation] from which the Court can properly assess whether, in fact, class certification is appropriate in this case [under Fed. R. Civ. P. 23(b)(2)].”

Finally, Judge Scullin granted in part and denied in part Defendants’ cross-motion to dismiss for failure to state a claim, finding that Plaintiffs have failed to state a claim against Defendant New York State Liquor Authority (because, as an agency of the state, it is shielded from federal suits by the Eleventh Amendment) but that Plaintiffs have stated a claim against the remaining Defendants (because Plaintiffs “have alleged sufficient facts to state a plausible claim that Defendants have treated them differently than they have treated similarly-situated [restaurant] establishments”).

Forty-five days after the issuance of the above-described decision, Plaintiffs voluntarily discontinued the action without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).

Confinement of Medically Vulnerable Prisoners

In Harper v. Cuomo, 21-CV-0019, 2021 WL 1821362 (N.D.N.Y. March 1, 2021) (Lovric, M.J.), three incarcerated individuals and an advocacy organization (“Plaintiffs”) brought a putative class action against the Governor of New York and five other government officials and entities (“Defendants”) based on New York State Department of Corrections and Community Supervision’s (“DOCCS”) summer 2020 transfer of nearly 100 elderly and/or medically vulnerable prisoners from around the state to Adirondack Correctional Facility (“Adirondack C.F.”) in Ray Brook, New York, while allegedly refusing to provide the necessary resources or adopt the basic health-and-safety protocols necessary to prevent the spread of COVID-19 there, creating a heightened risk of spreading infection and undermining the ability to treat the particularly vulnerable group. Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the Eighth Amendment, Title II of the Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation Act (“RA”).

Plaintiffs moved for a preliminary injunction.

Following an evidentiary hearing, U.S. Magistrate Judge Miroslav Lovric issued a Report-Recommendation recommending the denial of Plaintiffs’ motion because (1) they had not demonstrated a clear likelihood of success on their claim that Defendants’ response to COVID-19 reflects deliberate indifference to a substantial risk of serious harm under the Eighth Amendment, (2) they had not demonstrated a clear likelihood of success on their claims that they were denied the opportunity to participate in or benefit from DOCCS’s services, programs, or activities, or DOCCS otherwise discriminated against them by reason of their disability under the ADA and RA, (3) they had not demonstrated that they will suffer an actual and imminent irreparable injury absent the requested injunctive relief, and (4) they had not demonstrated that the balance of equities and the public interest weigh in favor of granting Plaintiffs’ motion for a preliminary injunction.

Magistrate Judge Lovric explained that “Adirondack [C.F.]’s response to COVID-19 has been aggressive . . . In addition, the data–though limited–suggests that the[] [seventeen] measures [taken] have been quite effective in containing COVID-19 thus far. . . . . [Finally,] Plaintiffs have not made a comparable showing that those within the facility face a higher risk of infection than those outside of it. . . . [In any event,] the record does not suggest that any . . . instances [of Defendants failing to follow proper COVID-19 precaution] reflected deliberate indifference, rather than negligent errors in implementing a new policy under emergency conditions.“

Plaintiffs filed a timely Objection to the Report-Recommendation.

In Harper v. Cuomo, 21-CV-0019, 2021 WL 1540483 (N.D.N.Y. April 2, 2021) (Kahn, J.), Senior U.S. District Judge Lawrence E. Kahn adopted the above-described Report-Recommendation, finding that (1) because Plaintiffs’ Objections to the Report-Recommendation restated arguments presented to Magistrate Judge Lovric, the Court need review the Report-Recommendation for only clear error, (2) no clear error exists in Magistrate Judge Lovric’s determination that Plaintiffs are unlikely to succeed on the merits of their claims (particularly the subjective element of their Eighth Amendment claim because, “[w]hile Defendants’ COVID-19 response at Adirondack [C.F.] has been imperfect, even negligence is not enough to support a finding of deliberate indifference”), and (3) because the Court concludes that Magistrate Judge Lovric’s did not commit clear error in determining that Plaintiffs are unlikely to succeed on the merits of their claims, it does not reach the questions of whether they have demonstrated irreparable harm or that the balance of equities and public interest favor an injunction.

Sixty-six days after the issuance of the above-described decision, Plaintiffs voluntarily discontinued the action without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).

Mask Mandate in K-12 Schools

In L.T. v. Zucker, 21-CV-1034, 2021 WL 4775215 (N.D.N.Y. Oct. 13, 2021) (Kahn, J.), nine minor students attending K-12 schools and their parents (“Plaintiffs”) sued the New York State Commissioner of Health (“Defendant”) based on the Department of Health’s issuance of an Emergency Rule and separate determination requiring any person over age two, and medically able to tolerate wearing a face mask, to wear such a mask in K-12 school settings. Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the First Amendment’s Free Speech and Free Association Clauses, Article VI’s Supremacy Clause (and the FDA’s regulations regarding face coverings), and the Fourteenth Amendment’s Due Process Clause.

Plaintiffs moved for a temporary restraining order based on the alleged violation of their rights under the First Amendment, a preliminary injunction, and expedited discovery in advance of a show cause hearing on the motion for a preliminary injunction.

Senior U.S. District Judge Lawrence E. Kahn denied the request for a temporary restraining order, and granted Plaintiffs’ request for expedited discovery in advance of a show cause hearing on the motion for a preliminary injunction. Judge Kahn explained that (1) Plaintiffs have established neither irreparable harm absent a temporary restraining order nor a likelihood of success on the merits of their First Amendment claim, (2) even if they had done so, they have not established that the public interest weighs in favor of granting the temporary restraining order, and (3) however, under the “reasonableness and good cause” standard that governs their request for expedited discovery, their request is undisputedly limited in scope and not overly burdensome on Defendant.

A hearing on Plaintiffs’ motion for a preliminary injunction is scheduled for December 15, 2021.

Restrictions on Displays and Advertisements by Firework Companies

In Santore v. Cuomo, 20-CV-0850, 2020 WL 9810016 (N.D.N.Y. Aug. 14, 2020) (D’Agostino, J.), four owners of firework companies sued the Governor of New York and two other government officials (“Defendants”) based on the state’s issuance of Executive Orders 202.10, 202.33, 202.34, 202.35, 202.37, 202.38, 202.38 and 202.42 (and the “Beaches and Lakes Guidance” and “Fireworks Guidance”), which prohibited, in relevant part, fireworks displays that result in outdoor gatherings of more than fifty people and the advanced advertisement of firework displays. Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the First Amendment’s Free Speech and Free Assembly Clauses and the Fourteenth Amendment’s Due Process and Equal Protection Clauses.

Following the denial of Plaintiffs’ motion for a temporary restraining order, the Court ordered expedited briefing on their motion for a preliminary injunction, which sought the enforcement of the June 26, 2020, injunctive order in Soos v. Cuomo, 20-CV-0651 (N.D.N.Y.) (Sharpe, J.), barring Defendants from enforcing any restrictions on outdoor gatherings provided that social distancing requirements are met.

U.S. District Judge Mae A. D’Agostino denied Plaintiffs’ motion for a preliminary injunction, finding (1) that Plaintiffs do not have standing to seek enforcement of the Soos order (given that they were not parties to, nor intended beneficiaries of, the Soos action, and failed in their motion to intervene in that action) and (2) in any event, they have failed to establish likelihood of success on the merits on any of their claims.

Twelve days after the issuance of the above-described decision, Plaintiffs voluntarily discontinued the action without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).

Restrictions on Sports and Recreation Activities at Bar-Restaurants

In Moxie Owl, Inc. v. Cuomo, 21-CV-0194, 2021 WL 677915 (N.D.N.Y. Feb. 22, 2021) (D’Agostino, J.), a bar-restaurant that also provided its patrons a venue for the sport of axe throwing (“Plaintiff”) sued the Governor of New York and three other government officials (“Defendants”) based on the Governor’s issuance of Executive Orders 202, 202.57, and 202.60, which allegedly disparately treated axe-throwing establishments on the one hand and bowling alleys and casinos on the other hand, by prohibiting the service of alcohol at the former but permitting it at the latter. Based on these factual allegations, Plaintiff claimed that Defendants violated its rights under the Fourteenth Amendment’s Equal Protection Clause and Article I, Section 11 of the New York State Constitution.

Plaintiff moved for a temporary restraining order by order to show cause pending a decision on its motion for a preliminary injunction.

U.S. District Judge Mae A. D’Agostino denied Plaintiff’s motion for a temporary restraining order (and its request for an Order to Show Cause) because of its failure to demonstrate either (1) a likelihood of success on the merits of its equal protection claims, or (2) a strong showing of irreparable harm (during the period before decision on the motion for a preliminary injunction).

With regard to the first element, Judge D’Agostino found that, “[o]n this record, the Court is unable to find that axe throwing venues and bowling alleys/casinos are sufficiently similar for Plaintiff to succeed on its [class-of-one] Equal Protection claim. . . . Without the benefit of briefing from Defendants on this matter, the Court will not speculate as to whether one activity is inherently more dangerous to participate in during a pandemic.”

With regard to the second element, Judge D’Agostino found that, “While Plaintiff is correct [that the denial of a constitutional right ordinarily warrants a finding of irreparable harm, even when the violation persists for minimal periods of time], the favorable presumption of irreparable harm arises only after a plaintiff has shown a likelihood of success on the merits of the constitutional claim, which Plaintiff has not done. . . . While the Court does not doubt that Defendants’ actions have impacted Plaintiff’s business, the orders at issue are temporary and Plaintiff is permitted to continue business operations within the confines of the orders at issue.”

Judge D’Agostino ordered, however, that Plaintiff’s motion for preliminary injunctive relief would be heard on an expedited basis.

In Moxie Owl, Inc. v. Cuomo, 21-CV-0194, 2021 WL 1402297 (N.D.N.Y. March 18, 2021) (D’Agostino, J.), Judge D’Agostino denied the above-described motion for a preliminary injunction, again because of Plaintiff’s failure to demonstrate (1) a likelihood of success on the merits of its class-of-one equal protection claims, and (2) public interest weighing in favor of granting the injunction.

With regard to the first element, Judge D’Agostino found that “Plaintiff has failed to set forth any comparators with an extremely high degree of similarity to itself. . . . Plaintiff’s complaint and motion for injunctive relief . . . make clear that Plaintiff functions more like a restaurant than [do] gambling or bowling establishments. . . . Plaintiff offers food and alcohol, . . . and even offered takeout food service during the pandemic. . . . Plaintiff has table service and bar seating, and an outdoor patio with additional seating.” In any event, Judge D’Agostino found, “even assuming that Plaintiff had set forth a sufficiently similar comparator, the claim is still not likely to succeed because Plaintiff has failed to negate all possible justifications for the executive action[,] . . . [which] may be based on rational speculation unsupported by evidence or empirical data. . . . While bowling alleys often offer food and alcohol, in this Court’s limited experience, patrons who go to bowling alleys do so primarily for the purpose of bowling. While many bowling alleys undoubtedly offer take-out food service, this service likely only comprises an insignificant portion of their businesses. This rational speculation as to why bowling alleys were treated differently than axe-throwing venues makes clear that this claim is unlikely to succeed on the merits.”

With regard to the second element, Judge D’Agostino found that, “[w]hile the Court does not believe that the . . . [Governor’s February 22, 2021] guidance [specifying that establishments that provide both recreational activities such as axe throwing and food and beverage service for patrons can resume service on March 5, 2021] moots this case, the fact that Plaintiff can now engage in the activities that are the subject of its motion for injunctive relief weighs strongly against the need for a preliminary injunction.”

Vaccination Mandate on Health Care Workers

In Dr. A v. Hochul, 21-CV-1009, 2021 WL 4189533 (N.D.N.Y. Sept. 14, 2021) (Hurd, J.), seventeen medical professionals employed in New York State (“Plaintiffs”) sued the Governor of New York and two other government officials (“Defendants”) based on the state’s promulgation of a regulation (10 N.Y.C.R.R. § 2.61) requiring–without any religious exemption–that personnel employed at general hospitals and nursing homes receive their first dose of a COVID-19 vaccine by September 27, 2021, and that personnel employed at other covered entities receive a vaccine by October 7, 2021. Based on these factual allegations, Plaintiffs claimed that Defendants violated their rights under the First Amendment’s Free Exercise Clause, Article VI’s Supremacy Clause (because the regulation runs afoul of Title VII of the Civil Rights Act of 1964), and the Fourteenth Amendment’s Equal Protection Clause.

Plaintiffs moved for a temporary restraining order by order to show cause pending a decision on their motion for a preliminary injunction.

U.S. District Judge David N. Hurd granted Plaintiffs’ motion for a temporary restraining order (and their request for an order to show cause), enjoining Defendants from, among other things, enforcing the vaccine mandate to the extent it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination mandates.

Six days after the issuance of the above-described decision, the TRO was extended until October 12, 2021.

In Dr. A v. Hochul, 21-CV-1009, 2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) (Hurd, J.), Judge Hurd granted the above-described motion for a preliminary injunction, finding that (1) Plaintiffs have established that they are likely to succeed on the merits of both their claim under Article VI’s Supremacy Clause (and Title VII of the Civil Rights Act of 1964) and their claim under the First Amendment’s Free Exercise Clause, (2) the favorable presumption of irreparable harm arises after a plaintiff has shown a likelihood of success on the merits of a constitutional claim, as Plaintiffs have done here, and (3) Plaintiffs have established that the balance of hardships and the public interest weigh in favor granting their motion for a preliminary injunction.

Judge Hurd explained that “[t]he question presented by this case is not whether plaintiffs and other individuals are entitled to a religious exemption from the State’s workplace vaccination requirement. Instead, the question is whether the State’s summary imposition of § 2.61 conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers. . . . [However,] the Court recognizes that it may not have the final word. . . . Because the issues in dispute are of exceptional importance to the health and the religious freedoms of our citizens, an [immediate] appeal may very well be appropriate.”

Seventeen days after the issuance of the decision, the Second Circuit vacated and remanded it for further proceedings in light of the Circuit’s decision in We the Patriots USA, Inc. v. Hochul, No. 21-2179, 2021 WL 5103443 (2d Cir. Oct. 29, 2021). On November 12, 2021, the Second Circuit issued an Order clarifying that it may be possible under § 2.61 for an employer to accommodate (and not exempt) employees with religious objections, by employing them in a manner that removes them from the rule’s definition of “personnel” (thus effectively permitting such employees to remain unvaccinated while employed). We the Patriots USA, Inc. v. Hochul, No. 21-2179, Order (2d Cir. Nov. 12, 2021).