Andre-Rodney v. Hochul

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, Mary T. Bassett, in her official capacity as Health Commissioner of New York State,¹ New York State Department of Health, and New York State Public Health and Planning Council,², Defendants MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiffs Daphnee Jane Andre-Rodney and Michael T. Finelli,³ New York State Security Services Assistants who currently work at hospitals located in New York State, bring this action against Defendants under 42 U.S.C. §1983 to challenge the mandate that they be “fully vaccinated against COVID-19″ as violative of their constitutional rights. (Dkt. No. 1); see 10 N.Y.C.R.R. §2.61(c) (Aug. 26, 2021). On November 1, 2021, after briefing and a telephonic hearing, the Court denied Plaintiffs’ motion for a preliminary injunction, finding that Plaintiffs had not made a showing of a likelihood of success on the merits of their constitutional claims or of irreparable harm. See generally Andre-Rodney v. Hochul, 569 F. Supp. 3d 128 (N.D.N.Y. 2021). Presently before the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 21). Plaintiffs opposed the motion, (Dkt. No. 25), and Defendants responded, (Dkt. No. 28).⁴ For the following reasons, Defendants’ motion is granted. II. FACTS⁵ 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). On August 23, 2021, the Food and Drug Administration (“FDA”) fully approved the Pfizer vaccine for individuals 16 years of age and older. (Id. 32).⁶ The Moderna and Janssen vaccines retain their EUA but have not yet been fully approved by the FDA, meaning they “have not gone through the typical six stages of approval.” (Id. 33). Plaintiffs allege that, although the COVID-19 vaccines “appear to be relatively safe at a population level, like all medical interventions, the vaccines carry a risk of side effects.” (Id. 34). Such side effects “include common, temporary reactions such as pain and swelling at the vaccination site, fatigue, headache, muscle pain, fever, and nausea.” (Id.). “More rarely,” the vaccines can cause “serious side effects that could result in hospitalization or death.” (Id.). Research “indicates that the vaccines present a heightened risk of adverse side effects to those who have previously contracted and recovered from COVID-19.” (Id. 35). Between December 14, 2020 and September 7, 2021, the CDC’s Vaccine Adverse Event Reporting System received 7,439 reports of death “among people that have received a COVID-19 vaccination.” (Id. 36). Plaintiffs allege that “the long-term effects” of the COVID-19 vaccines “remain unknown and unstudied.” (Id. 37). 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. (See Dkt. No. 1-1, at 9). The Council adopted the emergency regulation on August 26, 2021; the regulation immediately went into effect for ninety days. (See Dkt. No. 1, 42; see also Dkt. No. 1-1 (text of the adopted amended regulation and its Regulatory Impact Statement)); see 10 N.Y.C.R.R. §2.61 (Aug. 26, 2021) (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 was more transmissible than previous variants. (Dkt. No. 1-1, at 11). 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).⁷ “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). Plaintiff Daphnee Andre-Rodney is a Security Services Assistant employed or affiliated with SUNY Downstate Health Sciences University in Brooklyn, New York. (Dkt. No. 1, 12). Plaintiff Michael Finelli is a Security Services Assistant employed or affiliated with SUNY Stony Brook in Stony Brook, New York. (Id. 19). SUNY Downstate Health Services University and SUNY Stony Brook are “hospitals, as defined in [Public Health Law] section 2801.” (Id. 1). Plaintiffs are members 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).⁸ Plaintiffs are “willing to abide by all mask mandates and a Testing Option.” (Id. 48). III. STANDARD OF REVIEW To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S. at 555). The Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). IV. ANALYSIS Plaintiffs’ Complaint alleges that the Vaccine Mandate violates their Fourteenth Amendment right to Equal Protection and their Fourteenth Amendment substantive due process rights. (Dkt. No. 1,

56-99). Defendants move to dismiss the Complaint in its entirety. A. Equal Protection Claim Plaintiffs first allege 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. 1,