Andre-Rodney v. Hochul

569 F.Supp.3d 128

Daphne Jane ANDRE-RODNEY, John Ludewig, Orie Monroe, Ryan G. Richards, Raymond Smith, Paul J. Williams, Syed Azad, Michael Thomas Finelli, and Bryan Reeves, Plaintiffs,

v.Kathy HOCHUL, in her official capacity as Governor of New York State, New York State, Howard Zucker, in his official capacity as Health Commissioner of New York State, New York State Department of Health, and New York State Public Health and Planning Council,¹ Defendants.

1:21-cv-1053 (BKS/CFH)

United States District Court, N.D. New York.

Signed November 1, 2021

For Plaintiffs: Dennis C. Vacco, Scott S. Allen Jr., Lippes Mathias Wexler Friedman LLP, 50 Fountain Plaza, Suite 1700, Buffalo, NY 14202.

For Defendants: Letitia James, Attorney General of the State of New York, Jorge A. Rodriguez, Brittany M. Haner, Assistant Attorneys General, of Counsel, The Capitol, Albany, NY 12224.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

On September 22, 2021, Plaintiffs, New York State Security Services Assistants and Safety & Security Officers who currently work at hospitals located in New York State, commenced this action against Defendants under 42 U.S.C. § 1983 to challenge the mandate that they be "fully vaccinated against COVID-19" and receive a first dose of the vaccine by September 27, 2021 as violative of their constitutional rights. (Dkt. No. 1); see 10 N.Y.C.R.R. § 2.61(c). On September 23, 2021, Plaintiffs filed a motion under Federal Rule of Civil Procedure 65 for a temporary restraining order ("TRO") and preliminary injunction enjoining Defendants "from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with the vaccine mandate." (Dkt. No. 4-2, at 3). On September 23, 2021, the Court denied Plaintiffs’ motion for a TRO and set a briefing schedule on the motion for a preliminary injunction. (Dkt. No. 8). On October 29, 2021, the Court held a telephonic hearing on the motion.² Having considered the parties’ submissions, (Dkt. Nos. 4, 10, 12), and argument at the hearing, the Court denies Plaintiffs’ motion for a preliminary injunction.

II. BACKGROUND³

A. COVID-19 Vaccines

This case arises out of regulations adopted by the Public Health and Health Planning Council (the "Council") of the New York State Department of Health ("DOH") in response to the COVID-19 pandemic. The United States Department of Health and Human Services declared COVID-19 a public health emergency on February 4, 2020. (Dkt. No. 1, ¶ 28). Pharmaceutical companies Pfizer, Moderna, and Johnson & Johnson ("Janssen") all applied for and received emergency use authorization ("EUA") for the COVID-19 vaccines each developed. (Id. ¶ 31; see also Dkt. No. 10-1, ¶¶ 49–54). On August 23, 2021, the Food and Drug Administration ("FDA") fully approved the Pfizer vaccine for individuals 16 years of age and older. (Dkt. No. 1, ¶ 32; Dkt. No. 10-1, ¶ 55). The Moderna and Janssen vaccines retain their EUA but have not yet been fully approved by the FDA; the Pfizer vaccine also remains available under EUA for individuals 12 years of age and older. (Dkt. No. 1, ¶ 33; Dkt. No. 10-1, ¶ 55).

The COVID-19 vaccines have proven effective in protecting individuals against serious disease and death from COVID-19. (Dkt. No. 10-1, ¶ 41). Vaccinated individuals are also less likely to transmit COVID-19 to others. (Id. ¶ 44). Moreover, according to the Centers for Disease Control and Prevention ("CDC"), the COVID-19 vaccines "are safe for almost all patients." (See id. ¶ 41). However, as Plaintiffs allege, the vaccines "carry a risk of side effects," which range from temporary reactions to, more rarely, serious side effects that could result in hospitalization or death. (Dkt. No. 1, ¶ 34 (citing CDC, "Possible Side Effects After Getting a COVID-19 Vaccine" (last updated Sept. 30, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/expect/after.html)); see also CDC, "Selected Adverse Events Reported after COVID-19 Vaccination" (last updated October 13, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/adverse-events.html.

B. The Vaccine Mandate

DOH has the authority to "supervise and regulate the sanitary aspects" of "businesses and activities affecting public health." N.Y. Pub. Health Law § 201(1)(m). Pursuant to its authority, DOH published a proposed emergency regulation for review and adoption by the Council. (Dkt. No. 10-1, ¶ 6). The Council adopted the emergency regulation on August 26, 2021; the regulation immediately went into effect for ninety days. (Id. ; see also Dkt. No. 1-1 (text of the adopted amendment and its Regulatory Impact Statement)); see 10 N.Y.C.R.R. § 2.61 (regulation as codified) (the "Vaccine Mandate"). The Vaccine Mandate was adopted against the backdrop of the predominance of the Delta variant of the COVID-19 virus, a variant which is more than twice as transmissible as previous variants. (Dkt. No. 10-1, ¶¶ 8, 10, 13).

The Vaccine Mandate applies to "[c]overed entities," defined to comprise any facility included in the definition of "hospital" in Public Health Law § 2801, agencies established pursuant to Public Health Law Article 36, hospices as defined in Public Health Law § 4002, and adult care facilities under DOH's regulatory authority. 10 N.Y.C.R.R. § 2.61(a)(1). The Vaccine Mandate requires covered entities to "continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities absent receipt of an exemption." Id. § 2.61(c).⁴ "Personnel" is defined as "all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease." Id. § 2.61(a)(2).

Plaintiffs are nine individuals who are either New York State Security Services Assistants or Safety & Security Officers who presently work in hospitals, as defined by Public Health Law § 2801. (Dkt. No. 1, ¶¶ 1, 12–20). The facilities they work at include SUNY Downstate Health Sciences University, SUNY Stony Brook, and the NYS Veterans Home at Montrose, New York. (Id. ¶¶ 12–20). Each Plaintiff is a member of the New York State Correctional Officers and Police Benevolent Association, Inc. (Id. ¶ 21). Plaintiffs object to the Vaccine Mandate and state that they will lose their jobs "unless they submit to the invasions of their bodies through a vaccination that carries unknown risks of serious side effects." (Id. ¶ 50). Plaintiffs are "willing to abide by all mask mandates and a Testing Option." (Id. ¶ 48).

III. STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure governs temporary restraining orders and preliminary injunctions. In the Second Circuit, the standard for issuance of a temporary restraining order is the same as the standard for a preliminary injunction. Fairfield Cty. Med. Ass'n v. United Healthcare of New Eng. , 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff'd , 557 F. App'x 53 (2d Cir. 2014) ; AFA Dispensing Grp. B.V. v. Anheuser-Busch, Inc. , 740 F. Supp. 2d 465, 471 (S.D.N.Y. 2010) ("It is well established that the standard for an entry of a temporary restraining order is the same as for a preliminary injunction."). "A party seeking a preliminary injunction must show (1) irreparable harm; (2) either a likelihood of success on the merits or both serious questions on the merits and a balance of hardships decidedly favoring the moving party; and (3) that a preliminary injunction is in the public interest." N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc. , 883 F.3d 32, 37 (2d Cir. 2018). However, where, as here, a party challenges "governmental action taken in the public interest pursuant to a statutory or regulatory scheme," it cannot rely on the "serious questions on the merits" alternative. Otoe-Missouria Tribe of Indians v. N.Y. State Dep't of Fin. Servs. , 769 F.3d 105, 110 (2d Cir. 2014). Accordingly, Plaintiffs must demonstrate a likelihood of success on the merits.⁵

IV. ANALYSIS⁶

A. Likelihood of Success on the Merits

Plaintiffs’ complaint alleges that the Vaccine Mandate violates their (1) Fourteenth Amendment right to Equal Protection, (2) Fourteenth Amendment right to refuse unwanted medical treatment, and (3) Fourteenth Amendment right to due process. (Dkt. No. 1, ¶¶ 56–99).

1. Equal Protection Claim

Plaintiffs argue that they are likely to prevail on their claim that the Vaccine Mandate violates the Equal Protection Clause because it treats Plaintiffs differently than a similarly situated group—teachers—without any rational basis. (Dkt. No. 4-1, at 5–12). Specifically, Plaintiffs argue that individuals who work in healthcare settings are similarly situated to teachers because (1) both groups interact with populations who are vulnerable to COVID-19 and who may transmit the virus to others and (2) both groups "come into daily contact with thousands of unvaccinated people" and may themselves be infected with COVID-19 or transmit the virus. (Id. at 6–8). Plaintiffs argue there is no rational basis for imposing the Vaccine Mandate on those working in healthcare settings but not on teachers, who have the option, in lieu of vaccination, of regular testing. (Id. at 8–12).⁷ Defendants respond that Plaintiffs are not similarly situated to teachers because the two groups "do not engage in the same type of work" and that the difference in treatment has a rational basis. (Dkt. No. 10, at 13–17).

The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause therefore ...