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

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WOMEN OF COLOR FOR EQUAL JUSTICE et

al.,

MEMORANDUM & ORDER

Plaintiffs, 22-CV-2234(EK)(LB)

-against-

THE CITY OF NEW YORK et al.,

Defendants.

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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. Vaccine Orders,

ECF Nos. 17-19 to 17-27. 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. Third Am. Compl. (TAC)

¶¶ 13–39, ECF No. 22. 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-launches-

covid-19-booster-campaign-additional-flexibility.

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. I denied the second TRO application on November 15,

2022. 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.

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.

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

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

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.

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.”).

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.”). Thus, even if permitted,

such amendment would be futile. 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,

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.”).

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