Keil v. The City of New York

1

MATTHEW KEIL, JOHN DE LUCA, SASHA DELGADO, DENNIS STRK, SARAH BUZAGLO, MICHAEL KANE, WILLIAM CASTRO, MARGARET CHU, HEATHER CLARK, STEPHANIE DI CAPUA, ROBERT GLADDING, NWAKAEGO NWAIFEJOKWU, INGRID ROMERO, TRINI-DAD SMITH, AMARYLLIS RUIZ-TORO, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF NEW YORK, DAVID CHOKSHI, in his official capacity of Health Commissioner of the City of New York, MEISHA PORTER, in her official capacity as Chancellor of the New York City Department of Education, ERIC ADAMS, in his official capacity as Mayor of the City of New York, NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants-Appellees.

Nos. 21-3043-cv, 21-3047-cv

United States Court of Appeals, Second Circuit

March 3, 2022

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3^rd of March, two thousand twenty-two.

Appeal from an order of the United States District Court for the Southern District of New York (Caproni, J.).

For Plaintiffs-Appellants: BARRY BLACK, Sarah E. Child, Jonathan R. Nelson, Nelson Madden Black LLP, New York, NY; SUJATA SIDHU GIBSON, Gibson Law Firm, PLLC, Ithaca, NY.

For Defendants-Appellees: SUSAN PAULSON, Assistant Corporation Counsel, Rich-ard Paul Dearing, Assistant Corporation Counsel, Devin Slack, Assistant Corporation Counsel, for Georgia M. Pestana, Corporation Counsel of the City of New York, New York, NY.

Present: DEBRA ANN LIVINGSTON, Chief Judge, AMALYA L. KEARSE JOHN M. WALKER, JR., Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

This is the second time we have reviewed a decision by the district court to deny a motion for a preliminary injunction in this case. The facts and procedural history of this matter are comprehensively set forth in our November 28, 2021, per curiam opinion, Kane v. De Blasio, 19 F.4th 152 (2d Cir. 2021), which concerned Plaintiff Teachers' challenge to the district court's denial of their earlier motions to preliminarily enjoin enforcement of the New York City Department of Education's (the "DOE") COVID-19 vaccine mandate (the "Vaccine Mandate").^[1] Plaintiffs now appeal the December 14 decision of the district court (Caproni, J.) denying their latest application for preliminary injunctive relief (the "Application"). Plaintiffs' Application challenges the process that the City of New York Reasonable Accommodation Appeals Panel (the "Citywide Panel" or "Panel") employed for reviewing Plaintiffs' requests for reasonable accommodations.^[2] The Application sought: (1) to enjoin the enforcement of the Vaccine Mandate "against any employee who asserts a sincere religious objection to vaccination," pending the outcome of the ongoing litigation; (2) to provisionally certify "a class of all DOE employees who assert religious objections" to the Vaccine Mandate; and (3) to compel "Defendants to immediately reinstate Plaintiffs and all proposed Class members to their original positions" before enforcing the Vaccine Mandate. App'x 1090-91. We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

"When a preliminary injunction will affect government action taken in the public interest pursuant to a statute or regulatory scheme, the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction." Agudath Isr. of Am. v Cuomo, 983 F.3d 620, 631 (2d Cir. 2020). The party seeking a preliminary injunction "bear[s] the initial burden of establishing a likelihood of success on the merits" and the other elements. We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 281 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021); see also New York by James v. Griepp, 11 F.4th 174, 177 (2d Cir. 2021). "In the context of their First Amendment claim, this means that Plaintiffs must show that they are likely to succeed on their claim that" the Citywide Panel process is not "neutral or generally applicable," We The Patriots, 17 F.4th at 281, within the meaning of Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872 (1990), and its progeny. Only "[i]f they succeed at that step" does "the burden shift[] to [Defendants] to show that [they are] likely to succeed in defending the challenged [process] under strict scrutiny." We The Patriots, 17 F.4th at 281. We "review a district court's denial of a preliminary injunction for abuse of discretion, but must assess de novo whether the court proceeded on the basis of an erroneous view of the applicable law." Agudath, 983 F.3d at 631.

Plaintiffs have failed to demonstrate that the district court abused its discretion in concluding that they failed to demonstrate that they were likely to prevail on the merits of their challenge to the Citywide Panel procedures. As both the district court and a motions panel of this Court emphasized, Plaintiffs' Application, which consists of a hastily drafted one-and-a-half-page letter and fifty-nine pages of various exhibits, is deficient in two overarching respects.

First, Plaintiffs advanced virtually no legal arguments before the district court that concern the Citywide Panel process. Rather, Plaintiffs' Application simply asserts that the district court should grant injunctive relief "[f]or all of the arguments and reasons already set forth in Plaintiffs' motion papers for injunctive relief filed in [the district court] and before the Second Circuit Court of Appeals." App'x 1091. But none of Plaintiffs' prior filings challenged the Citywide Panel procedures. Plaintiffs' prior arguments were instead directed at the Vaccine Mandate and the exemption standards set forth in a related arbitration award.^[3] This Court has already explained why Plaintiffs are unlikely to prevail on the merits of their facial challenge to the Vaccine Mandate. See Kane, 19 F.4th at 163-67. And because the Citywide Panel did not adopt the arbitration award's exemption standards, the arguments that Plaintiffs advanced to challenge those standards are largely irrelevant to their Application.^[4] On appeal, Plaintiffs raise a number of arguments that they failed to present to the district court. They argue, for example, that the Citywide Panel process is subject to strict scrutiny because "[r]eligious accommodation decisions made by government employers" invite governmental decisionmakers to exercise discretion and are therefore never generally applicable. Appellants' Br. 25; see also id. at 26 (citing Fulton v. City of Phila., 141 S.Ct. 1868, 1879 (2021)). They also claim that they will suffer irreparable harm absent an injunction because the Vaccine Mandate "coerces" them to violate their religious beliefs by getting vaccinated. Id. at 48. We take no position on these arguments, which we deem waived. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) ("It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.").

Second, Plaintiffs failed to adduce sufficient factual evidence from which the district court might have concluded that they are likely to prevail on the merits of their challenge to the Citywide Panel's procedures. The Application did not attach copies of the reasonable-accommodation applications that Plaintiffs submitted to the Panel; and although Plaintiffs' brief on appeal informs this Court that those applications are in the record because they were the same reasonable-accommodation applications that Plaintiffs had made previously, see Appellants' Br. 40-41, Plaintiffs did not so inform the district court. Instead, the Application attached news articles, without explaining their relevance to Plaintiffs' applications; the responses of one-third of the Plaintiffs to the Citywide Panel's requests for supplemental information, but not the responses of the majority; and notices that the Panel sent on December 8 and 10, 2021, informing Plaintiffs that their accommodation requests had been denied once more (the "Notices"). App'x 1101. The Application cursorily asserts that "[t]he basic new facts are in the attached declarations from counsel, incorporated by reference along with exhibits into this letter motion." Id. at 1090. But the attached declarations allege only that the Citywide Panel process "did not define any criteria or procedural safeguards," was a "sham process conducted by a biased panel," and resulted in "summary auto-generated denials" (i.e., the Notices) with "no explanation . . . for why the Plaintiffs were denied." Id. at 1093; see also id. at 1837. Beyond those conclusory allegations and a small fraction of Plaintiffs' responses to the Citywide Panel's requests for additional information, Plaintiffs presented the district court with almost no information regarding the Panel's process or the Panel's summary explanations of its denials (the "Summaries"), which it issued on December 13. Id. at 1164-69.

Plaintiffs attempt...