OPINION & ORDER Plaintiffs The Bronx Defenders, Legal Aid Society, Brooklyn Defender Service, Queens Law Associates Not for Profit Corporation, Neighborhood Defender Service of Harlem, and New York County Defender Services (collectively, “Plaintiffs”) bring this action against the Office of Court Administration and Lawrence K. Marks (collectively, “Defendants”) alleging violations of Title II of the Americans with Disabilities Act, 42 U.S.C. §12132 (“ADA”); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794(a) (“Section 504″); and the Fourteenth Amendment. Specifically, Plaintiffs allege that the New York City Criminal Court’s plan to commence limited in-person appearances does not adequately accommodate people with protected disabilities under federal law. Plaintiffs filed a motion for an ex parte Temporary Restraining Order to halt in-person appearances in New York City Criminal Court, which the Court denied. The Court Ordered Defendants to Show Cause why the Court should not enter a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) that would halt in-person appearances in New York City Criminal Court pending further proceedings. After briefing and a Show Cause hearing, the Court hereby DENIES Plaintiffs’ motion for a preliminary injunction. The case is DISMISSED. INTRODUCTION Plaintiffs bring serious allegations of risks that their attorneys and clients face in returning to courthouses during a global pandemic. In the midst of the ongoing, unprecedented COVID-19 pandemic, court systems face the difficult task of slowly and safely restarting in-person operations. Plaintiffs, New York City’s public defender organizations, allege that New York City Criminal Court’s reopening plan requires unnecessary in-person appearances without adequate accommodations for people with medical vulnerabilities, which puts Plaintiffs’ staff and clients at serious risk from COVID-19 and violates federal law. Federal courts, “anxious though [they] may be to vindicate and protect federal rights and federal interests, always endeavor[] to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger v. Harris, 401 U.S. 37, 44. This Court does not, and indeed cannot, dictate if, when, and how state criminal courts reopen or schedule in-person appearances. To do so would violate fundamental principles of comity and federalism, and would result in federal supervision of state procedures and proceedings in direct contradiction of O’Shea v. Littleton, 414 U.S. 488 (1974). Without adjudicating the merits of Plaintiffs’ claims, the Court concludes that pursuant to Supreme Court and Second Circuit caselaw, it must abstain from deciding this action. BACKGROUND I. Factual Background The COVID-19 pandemic has plagued the United States, millions have been infected, and over one hundred thousand people have died. See Complaint (ECF No. 1) at 21. “According to the Center for Disease Control and Prevention, numerous common medical conditions place people at increased risk for severe illness or death from COVID-19, including chronic kidney disease, chronic obstructive pulmonary disease, serious heart conditions, sickle cell disease, obesity, and diabetes.” Id. Plaintiffs in this case have hundreds of staff members and clients who suffer from medical vulnerabilities that put them at greater risk of severe illness or death from COVID-19. Id. at 24. On March 16, 2020, in response to the COVID-19 crisis, New York State Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks restricted all court operations to “essential” matters only and stopped in-person appearances. See Defendants’ Memorandum of Law in Opposition (ECF No. 25) (“Def. Opp.”) at 3; see also Declaration of Hon. Tamiko Amaker (ECF No. 27) (“Amaker Decl.”) at 8. Defendants allege that the restriction on in-person appearances, although necessary to address the public health concern, also limited critical court functions “including (1) issuing or modifying, and serving on defendants, orders of protection; (2) monitoring non-custodial pre-trial conditions of release; (3) reviewing custody status generally; and (4) conferencing matters.” Def. Opp. at 3. This disruption resulted in “a backlog of 39,000 cases citywide, which encompasses nearly 12,000 unindicted felonies…. This represents approximately a 33 percent increase in pending matters and a 42 percent increase in unindicted felonies over just four and a half months.” Amaker Decl. at 9. For months, Plaintiffs have engaged in calls with the Office of Court Administration (“OCA”) to discuss and plan criminal court operations, including the return of in-person appearances. See Complaint at 33; Amaker Decl. at 10. In preparation for the return of in-person proceedings, OCA hired Dr. Amira Roess, an epidemiological expert, to consult on site-specific COVID-19 protocols as well as the statewide return plans. See Amaker Decl. at 10. Plaintiffs retained their own epidemiological experts, CrowdRx, a team of physicians and public safety experts. See Complaint at 34. In June, Plaintiffs, Defendants, CrowdRx, and others participated in tours of nine courthouses in anticipation of reopening these and other courthouses for in-person appearances. See Complaint at 36; Amaker Decl. at 13. On July 6, 2020, the Honorable Tamiko Amaker informed Plaintiffs that limited in-person appearances would commence during the week of July 13, 2020. Amaker Decl. at 15. On July 9, 2020, OCA released its return plan for limited in-court appearances beginning on July 15, 2020. See Preliminary Outline of COVID-19 Resumption of In-Person Operations (ECF No. 6-1) (“Return Order”). The abrupt release of the Return Order — only three business days before in-person proceedings were to commence again — caused significant disruption to Plaintiffs, their staff, and their clients. See Complaint at
40-46 Pursuant to the Return Order, up to ten criminal cases per day, per borough, were scheduled for in-person appearances. See Return Order at 1. Judges of the Criminal Court were instructed to select “the most serious unindicted felony matters where there was a bail-eligible offense charged or recidivist defendants with multiple open matters.” Amaker Decl. at 17. The Parties dispute how much notice criminal defendants and their attorneys received ahead of in-person hearings. Compare Amaker Decl. at 19 (“All notices went out at least forty-eight hours ahead of any court appearance.”), with Complaint at 58 (“In many cases thus far, neither the Public Defenders nor the individual counsel of record received notice of a case being selected until less than 48 hours prior to the appearance. In at least one case, a lawyer received less that 24 hours’ notice….”). Judges were also instructed to “grant a defendant any and all accommodations requested due to COVID-19-related co-morbidities, risk-factors, or other circumstances, including allowing a virtual appearance or granting an adjournment” and to provide accommodations for individual defense counsel as well. Amaker Decl. at 20.1 Plaintiffs dispute that accommodations are being provided in all cases, and cite examples of staff and clients with disabilities being denied accommodations. See Complaint at
