Women of Color for Equal Justice et al v. The City of New York

Filing 39

MEMORANDUM & ORDER: Plaintiffs' applications for a preliminary injunction are denied, and their request for leave to amend their preliminary injunction papers is denied. Plaintiffs are warned that any further requests for emergency or pr eliminary relief premised on issues that the Court has already decided will expose them to sanctions for engaging in vexatious litigation. The Court will reserve decision on the pending motion for class certification. A briefing schedule for Defendants' motion to dismiss will be set by separate order. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 11/18/2022. (AH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
WOMEN OF COLOR FOR EQUAL JUSTICE et
al.,
MEMORANDUM & ORDER
22-CV-2234(EK)(LB)

Plaintiffs,
-againstTHE CITY OF NEW YORK et al.,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:

The plaintiffs here — an organization called Women of
Color for Equal Justice and a number of current and former
employees of the City of New York — filed this lawsuit against
the City, its Mayor and Commissioner of Public Health, and its
Departments of Education and of Health and Mental Hygiene.
Plaintiffs challenge the City’s orders requiring certain
employees to obtain a COVID-19 vaccine.

They have applied for a

preliminary injunction enjoining the City from enforcing those
requirements.

Because Plaintiffs have failed to show a

sufficient likelihood on the merits, those applications are
denied.1

1

In denying the applications, the Court expresses no view on whether
Women of Color for Equal Justice has organizational standing to participate
in this lawsuit. Defendants have indicated that they intend to raise this
issue in their forthcoming motion to dismiss. Defs.’ PMC Request 3, ECF No.
13. Where the standing issue may “raise[] difficult issues, it need not
detain the court on this expedited application for a preliminary injunction.”

I.

Background

Between August and December 2021, in response to the
COVID-19 pandemic, the New York City Commissioner of Health and
Mental Hygiene issued a series of nine orders requiring certain
individuals to be vaccinated against COVID-19.
ECF Nos. 17-19 to 17-27.

Vaccine Orders,

These included employees and

contractors of the New York City Department of Education, other
City employees and contractors, childcare workers, nonpublic
school staff, and employees of private businesses.

Id.2

Plaintiffs are employees or former employees of
various City agencies who allege they lost their jobs or were
placed on unpaid leave for refusing the COVID-19 vaccine, or who
were “coerced” into becoming vaccinated.
¶¶ 13–39, ECF No. 22.

Third Am. Compl. (TAC)

They filed this lawsuit alleging that the

Vaccine Orders violate the Occupational Health and Safety Act of
1970 (OSHA), 29 U.S.C. §§ 651–678; the Supremacy Clause; the

Fulani v. League of Women Voters Educ. Fund, 684 F. Supp. 1185, 1194
(S.D.N.Y. 1988), aff’d, 882 F.2d 621 (2d Cir. 1989); see also All. for Env’t
Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85, 87 (2d Cir. 2006)
(Supreme Court’s “ruling that a district court must generally . . . establish
that it has federal constitutional jurisdiction, including a determination
that the plaintiff has Article III standing, before deciding a case on the
merits,” “seeks to guard only against a definitive ruling on the merits by a
court that lacks jurisdiction because of the absence of an Article III
requirement”).
2

The City subsequently lifted the Vaccine Order for private-sector
employees effective November 1, 2022. See City of New York, Transcript:
Mayor Eric Adams Launches COVID-19 Booster Campaign, Announces Additional
Flexibility for NYC Businesses, Parents (Sept. 20, 2022), https://www.nyc.
gov/office-of-the-mayor/news/688-22/transcript-mayor-eric-adams-launchescovid-19-booster-campaign-additional-flexibility.

2

First Amendment; and New York City law.

Id. ¶¶ 88–188.

They

seek declaratory and injunctive relief and monetary damages.
Id. ¶¶ 189–91.
On September 2, 2022, Plaintiffs filed a motion for a
temporary restraining order (TRO) and a preliminary injunction.
Pls.’ Mot. for TRO & Prelim. Inj. (“Pls.’ 1st Appl.”), ECF No.
17.

I denied the TRO on September 14, 2022.

Plaintiffs then

filed a second motion for a TRO and a preliminary injunction on
October 26, 2022, this time packaged with a motion for class
certification.

Pls.’ Renewed Mot. for TRO, Prelim. Inj. &

Prelim./Conditional Class Certification (“Pls.’ 2d Appl.”), ECF
No. 33.
2022.

I denied the second TRO application on November 15,

Memorandum & Order, ECF No. 37.

Plaintiffs subsequently

filed a motion seeking leave to amend its application for a
preliminary injunction:
to drop the request for injunctive relief pursuant to
FRCP §65 and to make clear that Plaintiffs are not
seeking a “cause of action” under the OSH Act, but
rather Plaintiffs seek Declaratory and Injunctive
Relief pursuant to FRCP §57 under 28 U.S.C. § 2201 and
§2202, which authorizes this Court to award as a final
judgment a declaration of rights and obligations
between the Plaintiffs and [Defendants] and to issue
an injunction pursuant to 28 U.S.C. §2202 . . . .
Pls.’ Request for Leave to Amend Motion 1 (all typographical
errors in original), ECF No. 38.

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II.

Legal Standards

A party seeking a preliminary injunction must
demonstrate (1) “a likelihood of success on the merits”; (2) “a
likelihood of irreparable injury in the absence of an
injunction”; (3) “that the balance of hardships tips in the
plaintiff’s favor”; and (4) “that the public interest would not
be disserved by the issuance of an injunction.”

Benihana, Inc

v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015).3
Where a preliminary injunction would alter the status quo, a
heightened standard applies: the party seeking it must show “a
clear or substantial likelihood of success on the merits.”

N.

Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32,
36-37 (2d Cir. 2018).

For the reasons discussed below,

Plaintiffs have failed to demonstrate the requisite likelihood
of success under either standard.
III.

Discussion

Plaintiffs’ applications for a preliminary injunction,
as they currently stand, are premised on the theories that the
Vaccine Orders violate (1) the Supremacy Clause of the U.S.
Constitution and OSHA; and (2) New York Public Health Law § 206.
See Pls.’ 1st Appl. 4–5; Pls.’ 2d Appl. 2–4.

Both arguments are

3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.

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meritless.

Additionally, Plaintiffs’ motion for leave to amend

their preliminary injunction papers is denied because such
amendment would be futile.
A.

Plaintiffs’ Applications for a Preliminary Injunction Are
Denied
1.

Neither the Supremacy Clause Nor the OSHA Act Provides
a Private Right of Action
Plaintiffs rely first on the Supremacy Clause and

OSHA, which they argue are inconsistent with, and preempt, the
Vaccine Orders.

Pls.’ 1st Appl. 4–5; Pls.’ 2d Appl. 2–4.

But

the Supremacy Clause does not provide a private right of action.
See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320,
324–25 (2015) (“It is . . . apparent that the Supremacy Clause
is not the source of any federal rights and certainly does not
create a cause of action.”).
Additionally, Plaintiffs have not shown that a private
right of action exists to sue under OSHA.

“Under OSHA,

employees do not have a private right of action.”

Donovan v.

Occupational Safety & Health Rev. Comm’n, 713 F.2d 918, 926 (2d
Cir. 1983).

The Second Circuit has explained that “it is

apparent from [OSHA’s] detailed statutory scheme that the public
rights created by the Act are to be protected by the Secretary
and that enforcement of the Act is the sole responsibility of
the Secretary.”

Id. at 927.

Relying on that holding, a

district court of the Southern District of New York recently

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rejected a state employee’s claims that his employer failed to
implement adequate COVID-19 safety protocols under the OSHA Act.
See Quirk v. DiFiore, 582 F. Supp. 3d 109, 115 (S.D.N.Y. 2022)
(citing Donovan, 713 F.2d at 926) (“The last of Quirk’s federal
law claims are for violations of OSHA regulations; these claims
all fail because Quirk cannot bring a lawsuit under OSHA.”).
Because no private right of action exists under either
provision, the application for preliminary injunctive relief on
this ground is denied.

See Joint Apprenticeship & Training

Council of Loc. 363, Int’l Bhd. of Teamsters, & United Const.
Contractors Ass’n v. N.Y. State Dep’t of Lab., 829 F. Supp. 101,
104–05 (S.D.N.Y. 1993) (denying application for preliminary
injunction where no private right of action existed under the
relevant statute).
2.

The Vaccine Orders Do Not Violate New York Public Law
Section 206
Nor have Plaintiffs shown a likelihood of success on

their argument that the Vaccine Orders violate New York Public
Health Law § 206(1)(l).

Pls. 2d Appl. 2.

That statute provides

that the Commissioner of Health of the State of New York
“shall”:
establish and operate such adult and child
immunization programs as are necessary to prevent or
minimize the spread of disease and to protect the
public health. Such programs may include the purchase
and distribution of vaccines to providers and
municipalities, the operation of public immunization

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programs, quality assurance for immunization related
activities and other immunization related activities.
The commissioner may promulgate such regulations as
are necessary for the implementation of this
paragraph. Nothing in this paragraph shall authorize
mandatory immunization of adults or children, except
as provided in [N.Y. Public Health Law §§ 2164–2165].
N.Y. Public Health Law § 206(1)(l).

Although their papers in

support of their applications for an injunction are sparse on
the subject, the Complaint contains the assertion that this
section “prohibits the [Commissioner] from establishing
regulations that mandate adult vaccination.”

TAC ¶ 70(c).

But the prohibition in the last sentence of Section
206(1)(l) applies only to “this paragraph” — i.e., to Section
206(1)(l) itself.

Plaintiffs do not contend (and certainly have

not shown) that the Vaccine Orders were issued under the
authority of Section 206(1)(l).

On the contrary, the Orders

themselves cite the City’s Charter and Health Code as authority
for their issuance.

For example, the August 24, 2021 order

invokes (among other provisions) Section 3.01(d) of the New York
City Health Code, which grants the City’s Department of Health
and Mental Hygiene the power to “issue necessary orders and take
such actions as may be necessary for the health or the safety of
the City and its residents” during a public health emergency.
N.Y.C. Health Code § 3.01(d) (codified in Title 24 of the Rules
of the City of New York).

See August 24, 2021 Vaccine Order 1,

ECF No. 17-19.

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Thus, Section 206 is not relevant to the legality of
those Orders.

See Marciano v. de Blasio, 589 F. Supp. 3d 423,

434 (S.D.N.Y. 2022) (“[A]s the [New York] Court of Appeals
explained in Garcia [v. N.Y.C. Dep’t of Health & Mental Hygiene,
106 N.E.3d 1187 (2018)], [Section 206(1)(l)] [is] directed to
the powers and duties of the Commissioner of the New York State
Department of Health and in no way limit[s] the New York City
Department or its Commissioner from issuing separate and
independent vaccine requirements.”); see also C.F. v. New York
City Dep’t of Health & Mental Hygiene, 139 N.Y.S.3d 273, 282,
284 (App. Div. 2d Dep’t 2020) (holding that a City order
mandating vaccination against measles did not exceed the City’s
authority, and observing that Section 206(1)(l) is “directed to
the powers and duties of the Commissioner of the State
Department of Health, not of the New York City Board,” and
accordingly does not “restrict the Board’s authority to regulate
vaccinations”).

Therefore, Plaintiffs’ request for injunctive

relief is denied on this ground as well.4

4

To the extent Plaintiffs seek to make out a claim under the Free
Exercise Clause on the basis that the Vaccine Orders “are not laws of
‘general applicability,’” Pls.’ 2d Appl. 3, the Second Circuit has already
considered and rejected that argument. See Kane v. De Blasio, 19 F.4th 152,
164 (2d Cir. 2021) (“The Vaccine Mandate, in all its iterations, is neutral
and generally applicable.”).

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B.

Plaintiffs’ Motion for Leave to Amend Their Application for
a Preliminary Injunction Is Denied
As noted above, Plaintiffs’ most recent filing states

their wish “to make clear” that they are seeking declaratory and
injunctive relief pursuant to Federal Rule of Civil Procedure 57
and 28 U.S.C. §§ 2201–2202, rather than OSHA itself.

But “a

request for relief in the form of a declaratory judgment does
not by itself establish a case or controversy involving an
adjudication of rights.”

In re Joint E. & S. Dist. Asbestos

Litig., 14 F.3d 726, 731 (2d Cir. 1993).

As the Second Circuit

explained:
The Declaratory Judgment Act does not expand
jurisdiction. Nor does it provide an independent
cause of action. Its operation is procedural only —
to provide a form of relief previously unavailable.
Therefore, a court may only enter a declaratory
judgment in favor of a party who has a substantive
claim of right to such relief.
Id.; see also Chiste v. Hotels.com L.P., 756 F. Supp. 2d 382,
406 (S.D.N.Y. 2010) (“Declaratory judgments and injunctions are
remedies, not causes of action.”).
such amendment would be futile.

Thus, even if permitted,

See Ruffolo v. Oppenheimer &

Co., 987 F.2d 129, 131 (2d Cir. 1993) (even in the context of
amending pleadings, “[w]here it appears that granting leave to
amend is unlikely to be productive . . . , it is not an abuse of
discretion to deny leave to amend”).

To the extent Plaintiffs

seek declaratory relief, that relief will be granted, if at all,

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only at the conclusion of the litigation process.

See B. Braun

Med., Inc. v. Abbott Lab’ys, 124 F.3d 1419, 1428 (Fed. Cir.
1997) (“Given that the [Declaratory Judgment] Act merely
provides a new noncoercive remedy, it should come as no surprise
that the practice in declaratory judgment actions is, on almost
every point, the same as in any civil action.”).5
IV.

Conclusion

For these reasons, Plaintiffs’ applications for a
preliminary injunction are denied, and their request for leave
to amend their preliminary injunction papers is denied.
Plaintiffs are warned that any further requests for emergency or
preliminary relief premised on issues that the Court has already
decided will expose them to sanctions for engaging in vexatious
litigation.

5 See also 10B Charles A. Wright & Arthur R. Miller, Federal Practice &
Procedure § 2768, Westlaw (4th ed. Apr. 2022 Update) (“Any doubt or
difficulty about the procedure in actions for a declaratory judgment
disappears if the action is regarded as an ordinary civil action, as Rule 57
clearly intends. . . . As Rule 57 expressly provides, the procedure for
obtaining a declaratory judgment must be in accordance with the federal
rules. . . . [T]he practice in [declaratory judgment] actions is, on almost
every point, the same as in any civil action.”).

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The Court will reserve decision on the pending motion
for class certification.

A briefing schedule for Defendants’

motion to dismiss will be set by separate order.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated:

November 18, 2022
Brooklyn, New York

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