589 F.Supp.3d 423
S.D.N.Y.2022Background
- In October 2021 the NYC Department of Health (Commissioner Chokshi) issued an Order requiring COVID-19 vaccination for City employees and certain contractors; the Board of Health ratified the Order in November 2021.
- The Order required proof of vaccination by October 29, 2021 and authorized exclusion from work beginning November 1, 2021; FAQs stated noncompliant employees without accommodations would be placed on Leave Without Pay and could be terminated under applicable procedures.
- The NYPD issued implementing guidance and an accommodations process; Detective Anthony Marciano applied for a religious accommodation (citing objections to fetal cell derivative research), was denied, appealed, and remains on active duty pending resolution of that appeal.
- Marciano sued in state court challenging the Order as ultra vires and preempted under state law and as violating federal substantive and procedural due process; a state-court TRO was issued, defendants removed the case to federal court and the federal court vacated the TRO.
- Defendants moved to dismiss for lack of standing and for failure to state a claim; the district court denied the standing dismissal but granted dismissal on the merits and dismissed the complaint with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Marciano lacks injury because he has not yet been placed on LWOP or terminated. | The threat of LWOP/termination is imminent given denial of accommodation is likely. | Court found injury "certainly impending" and denied 12(b)(1) dismissal. |
| Ultra vires / Separation of powers (state law) | The Commissioner/Board exceeded their authority under NY law in issuing the vaccine mandate. | The Charter and Health Code delegate broad authority to the Department/Board to protect public health, including vaccination requirements. | Court held the Order was within the Board/Commissioner authority (dismissed ultra vires claim). |
| Preemption (state public health law) | State Public Health Law limits mandatory immunizations to children/post‑secondary students and thus preempts the City Order. | State law does not limit municipal health authorities; Garcia and C.F. permit City vaccination requirements. | Court held the Order is not preempted by state law (dismissed claim). |
| Substantive due process | The Order violates bodily integrity and fundamental rights. | Jacobson and subsequent decisions permit vaccination mandates during public‑health emergencies. | Court dismissed the claim, concluding Jacobson controls and vaccination mandates do not violate substantive due process here. |
| Procedural due process | NYPD failed to follow disciplinary procedures and thus denied constitutionally required process before LWOP/termination. | Marciano received constitutionally adequate process: advance notice and an opportunity to seek accommodation and to appeal. | Court held Loudermill-level process (notice and chance to respond) was satisfied and dismissed the claim. |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upheld vaccine mandates as constitutionally permissible during public‑health emergencies)
- Garcia v. New York City Dep’t of Health & Mental Hygiene, 31 N.Y.3d 601 (2018) (NY Court of Appeals affirmed Board authority to adopt vaccination rules)
- C.F. v. New York City Dep’t of Health & Mental Hygiene, 191 A.D.3d 52 (N.Y. App. Div. 2020) (Appellate Division upheld adult vaccination order during measles outbreak and Commissioner’s emergency authority)
- We The Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021) (recognized Jacobson’s continued applicability to COVID‑era vaccine requirements)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (procedural due process requires notice and an opportunity to respond)
- O’Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005) (public employees have a property interest in continued employment enforceable under due process)