Coughlin v. New York State Unified Court System

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------------------x

KIM COUGHLIN, ANNE

GALLAGHER, DONNA NOYCE,

TAYLER THOMPSON, and NYS

COURT EMPLOYEES AGAINST

MANDATES LTD.,

Plaintiffs, MEMORANDUM AND ORDER

-against- Case No. 2:22-CV-04002 (FB) (JMW)

NEW YORK STATE UNIFIED COURT

SYSTEM, NEW YORK STATE

OFFICE OF COURT

ADMINISTRATION, CHIEF JUDGE

JANET DIFIORE, CHIEF

ADMINISTRATIVE JUDGE

LAWRENCE K. MARKS, JUSTIN A.

BARRY, NANCY BARRY, and

CAROLYN GRIMALDI,

Defendants.

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Appearances:

For Plaintiffs: For Defendants:

CHAD J. LAVEGLIA BRUCE BIRENBOIM

Law Office of Chad J. LaVeglia PLLC LIZA M. VELAZQUEZ

262 RxR Plaza, Suite 613 GREGORY F. LAUFER

Uniondale, NY 11556 Paul, Weiss, Rifkind, Wharton &

Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

1

LINA DAGNEW

Paul, Weiss, Rifkind, Wharton &

Garrison LLP

2001 K Street, NW

Washington, D.C. 20006

BLOCK, Senior District Judge:

This case is the latest challenge to New York State Unified Court System’s

(“UCS”) Vaccine Mandate, issued in response to the COVID-19 pandemic.1

Defendants UCS, New York State Office of Court Administration (“OCA”), Chief

Judge Janet DiFiore, Chief Administrative Judge Lawrence K. Marks, Chief

Administrator for the OCA Justin Barry, Chief of Operations for the OCA Nancy

1 In adjudicating Defendants’ motion, the Court is cognizant of the multiple other challenges that

have been previously litigated before other courts. With small exception, those challenges have

so far been unsuccessful. Ferrelli v. New York Unified Ct. Sys., No. 122CV0068LEKCFH, 2022

WL 673863, at *9 (N.D.N.Y. Mar. 7, 2022) (declining to preliminarily enjoin the Vaccine

Mandate for violating the Free Exercise Clause of the First Amendment); Brignall v. New York

Unified Ct. Sys., No. E2022-0241CV, 2022 WL 17543641, at *14 (N.Y. Sup. Ct. Apr. 13, 2022)

(declining to enjoin the Vaccine Mandate for being arbitrary and capricious, enacted in excess of

jurisdiction, or in violation of the Free Exercise Clause, and granting motion to dismiss under

N.Y. C.P.L.R. 3211 (a)(7)); Ferrelli v. State of New York, No. 031506/2022, NYSCEF Doc. No.

74 at 22 (granting motion to dismiss under N.Y. C.P.L.R. 3211 (a)(7) and 7804(f)); Civ. Serv.

Emps. Ass’n, Inc., Loc. 1000, AFSCME, AFL-CIO v. New York Unified Ct. Sys., 157 N.Y.S.3d

675, 695 (N.Y. Sup. Ct. 2021) (declining to enjoin Vaccine Mandate upon challenge from labor

unions); Mora v. New York Unified Ct. Sys., No. 22 CV 10322 (VB), 2023 WL 6126486, at *15

(S.D.N.Y. Sept. 19, 2023) (dismissing Title VII, § 1983 Free Exercise claim, First Amendment

retaliation claim, and Equal Protection claim brought by NY judge who was denied religious

exemption and declining to issue injunctive relief). But see Ventresca-Cohen v. DiFiore, 177

N.Y.S.3d 853, 862-65 (N.Y. Sup. Ct. 2022) (partially granting petition for review in Article 78

proceeding on the basis that UCS may have irrationally denied petitioners’ religious

exemptions).

2

Barry, and Director of Human Resources for the OCA Carolyn Grimaldi

(collectively “Defendants”), move to dismiss under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6).2 For the following reasons, Defendants’ motion is granted.

I. BACKGROUND

The following facts are taken from the Complaint. For the purposes of this

motion, the Court accepts them as true and draws all reasonable inferences in favor

of Plaintiffs with respect to Defendants’ 12(b)(6) motion. See, e.g., Kaluczky v. City

of White Plains, 57 F.3d 202, 206 (2d Cir. 1995).

Plaintiffs are 96 New York court staff who were terminated, have retired with

decreased benefits, are employed pursuant to involuntary vaccinations, are on

approved leave with denied religious exemptions, or who received a religious

exemption but still object pursuant to the claims raised in the instant case. The four

named Plaintiffs are former OCA employees who worked as court officers and court

assistants. The remaining Plaintiffs are represented by the non-profit NYS Court

Employees Against Mandated, Ltd (“NYSCEAM”), which retained counsel to

commence litigation on their behalf. Plaintiffs’ employer was OCA, the

2 In their opposition papers, Defendants concede that Carolyn Grimaldi was not a properly

named defendant and abandon their claims against her. Accordingly, all claims against Grimaldi

are dismissed.

administrative arm of UCS. UCS in turn is the judicial branch of New York State

pursuant to Article VI of the New York Constitution.

Around March 2020, the COVID-19 Pandemic began, prompting New York

to declare a state of emergency. For a time, New York courts, like many public

institutions across the country, were forced to halt most in-person operations and

operate virtually. During this difficult time, New York courts were kept afloat by

the dedication and hard work of their staff.

Around May 2021, New York State court staff returned to work in person.

On or about August 9, 2021, Chief Judge DiFiore announced that, beginning on

September 7, 2021, unvaccinated court staff were going to be required to undergo

weekly COVID-19 testing and daily COVID-19 assessments. The testing

requirements were mandatory, irrespective of whether the court staff appeared sick,

reported flu-like symptoms, or had a fever. As court staff, Plaintiffs complied with

the testing requirements.

In response to the pandemic, several pharmaceutical companies developed

vaccines to combat the virus. Around late 2021, three COVID-19 vaccinations

became available to the general public in New York—made by PfizerBioNTech

(“Pfizer”), Moderna, and Johnson & Johnson. According to the Complaint, the

Pfizer and Moderna vaccines built an immune response through messenger RNA

(“mRNA”). mRNA is a genetic material made from a DNA template. An mRNA

carries information from the DNA in a cell’s nucleus to a protein building ribosome.

There, the ribosome reads the mRNA sequence and builds amino acids into proteins

in order to combat the virus: “In regular terms, ribosomes build the stuff we are made

of.” Compl. ¶ 55.

On or about August 25, 2021, Chief Judge DiFiore and Chief Administrative

Judge Marks announced a mandatory vaccine requirement via email (the “Vaccine

Mandate”). Beginning September 27, 2021, all judicial and non-judicial personnel

across New York were required to be vaccinated to attend work in person. Any

employee of New York’s judiciary who was not vaccinated by September 27, 2021,

and who had not received a medical or religious exemption, would be prohibited

from reporting to work. Those employees would also face disciplinary action

including lost wages, lost benefits, suspension, or termination. Under the policy,

vaccinated employees had to obtain a booster shot a year after they were vaccinated

or they would lose their vaccinated status. But, even without a booster shot,

unvaccinated employees who had previously received a vaccination would not be

subject to termination. Members of the public, including lawyers, jurors, and

litigants, could enter courthouses without being vaccinated.

Court employees could apply for medical or religious exemptions from the

mandatory vaccination requirement. Exemption applications were reviewed by a

Vaccination Exemption Review Committee (the “Committee”), which was created

for this specific purpose. The Committee was supervised by two in-house UCS

attorneys. Employees who were granted religious exemptions had to reapply around

September 2022, and then subsequently on an annual basis.

Most Plaintiffs applied for religious exemptions. The vast majority were

denied. Defendants did not provide Plaintiffs with any explanation for the denial.

According to Plaintiffs, this was part of a conspiracy—Defendants created the

exemption process with the intent of granting a finite percentage of exemption

requests, regardless of their validity. Plaintiffs allege that the Committee’s criteria

for evaluating exemption requests were arbitrary, non-uniform, and non-

standardized, and that Defendants evaluated requests for exemptions without

knowing the applicant’s identity. According to Plaintiffs, this anonymity meant that

the Committee could not determine the applicants’ veracity. Regarding religious

exemptions, Plaintiffs allege that the evaluation process was based on whether or not

an articulated religious belief specifically prohibited the use of the COVID-19

vaccines.

According to the Complaint, after receiving numerous, valid applications,

Defendants added a supplemental form to the religious exemption application.3

Plaintiffs allege that the supplemental form was intended to minimize requests for

exemptions based on the belief in fetal cells being used in vaccines, the body’s

connection to God, and beliefs that did not fit squarely within a religious dogma.

The Supplemental form is divided into two sections. The first section begins

by explaining the fetal cell lines that were used in the development of the COVID-

19 vaccines. The form explains that the fetal cell lines were used to develop or

manufacture the vaccines but were not used in the vaccines themselves. The section

then provides a table with a list of drugs that relied on the same fetal cell line in their

development. Applicants are asked whether they used any of the listed products,

and how their religious beliefs permit them to take those medications but not

COVID-19 vaccines. Applicants are then told about other vaccines that also utilize

fetal cell lines in production or testing. The form then asks the applicant which

vaccines they have received, and, if they indicated that they have received a fetal-

3 Although the terms of the supplemental form are not listed in the Complaint, the Court

incorporates them by reference given the Complaint’s heavy reliance upon them and because

doing so does not prejudice Plaintiffs. See Spencer Trask Software Info. Serv. v. Rpost Intl., 383

F. Supp. 2d 428, 438 (S.D.N.Y. 2003) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d

42, 47-48 (2d Cir. 1991)).

cell-developed vaccine, how their religious beliefs permit them to take these

vaccines but prohibit them from taking a COVID-19 vaccine.

The second section of the supplemental form states:

You have provided information in a previous statement indicating that

your religious faith calls for you to abstain from medicines and vaccines

due to concerns regarding the sanctity of your body or its purity. Please

answer the questions below to allow us to gain a better understanding

of your beliefs.

The applicants are then asked to: (1) list all the medicines, medical treatments and

procedures, vaccines, and/or foods that they abstain from due to their religious

beliefs; (2) list the date they began to abstain from the specified medicines and

vaccines and/or other medical treatments; (3) provide a detailed explanation as to

why their religious faith requires them to abstain from the listed substances in

question 1; (4) state whether they have received an influenza, pneumonia, tetanus,

shingles, HPV or any other type of vaccine since turning 18 years of age; and (5) to

explain how their religious beliefs permit them to take the vaccines listed in question

4 but prohibit the taking of a COVID-19 vaccine.

Employees who were granted a medical or religious exemption were required

to test weekly and to be assessed daily. Employees whose exemptions were denied

were required to obtain the vaccine or they would be subject to disciplinary actions

including lost wages, lost benefits, suspension, or termination. Vaccinated

employees who did not obtain the annual booster would not be subject to weekly

tests, daily COVID health assessments, or temperature checks.

On July 7, 2022, Plaintiffs initiated this lawsuit. They brought eight claims:

(i) violation of the United States Constitution Article IV, Section 4 Guarantee

Clause; (ii) violation of N.Y. Constitution Article III, Section 1; (iii) violation of

substantive due process under the Fourteenth Amendment of the United States

Constitution pursuant to 42 U.S.C. § 1983; (iv) conspiracy to interfere with civil

rights pursuant to 42 U.S.C. § 1985(3); (v) breach of contract; (vi) violation of

procedural due process under the Fourteenth Amendment of the United States

Constitution pursuant to 42 U.S.C. § 1983; (vii) violation of N.Y. Constitution

Article I, Section 6 and the Due Process Clause of the Fourteenth Amendment of the

United States Constitution for arbitrary and capricious conduct; and (viii) violation

of the Equal Protection Clause of the Fourteenth Amendment of the United States

Constitution pursuant to 42 U.S.C. § 1983.4 Defendants moved to dismiss all counts

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).5

4 Although courts often use loose language, in federal court the correct term to describe requests

for relief in pleadings is “claims.” See Fed. R. Civ. P. 8.

5 In Plaintiffs’ opposition to Defendants’ motion to dismiss, they abandoned their claims for

breach of contract and violation of procedural due process; accordingly, those claims are both

dismissed.

II. DISCUSSION

a. Standards of Review

i. 12(b)(1)

Rule 12(b)(1) requires that a case be dismissed for lack of subject matter

jurisdiction when the district court lacks the statutory or constitutional power to

adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The

party asserting subject matter jurisdiction carries the burden of establishing, by a

preponderance of the evidence, that jurisdiction exists. Id. A court must accept all

material factual allegations as true in evaluating a 12(b)(1) motion, but unlike with

a 12(b)(6), it does not draw inferences in favor of the plaintiff. See J.S. ex rel. N.S.

v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).

ii. 12(b)(6)

“To survive a motion to dismiss [under Federal Rule of Civil Procedure

12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, ‘to

state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim

is facially plausible when “the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). The pleading must offer more than

“bare assertions,” “conclusory” allegations, and a “formulaic recitation of the

elements” of a claim. Iqbal, 556 U.S. at 681.

b. Analysis

The Court now turns to an analysis of Defendants’ motion.6

i. Plaintiff’s Guarantee Clause Claim

Plaintiffs’ Complaint alleges that the Vaccine Mandate usurped the legislative

power of New York’s congressional bodies and thereby deprived Plaintiffs of their

right to a republican form of government under the Guarantee Clause of the United

States Constitution. Defendants argue that Plaintiffs claims under the Guarantee

Clause are non-justiciable and should be dismissed.

Claims brought under the Guarantee Clause have been found to present non-

justiciable political questions, almost without exception. See Futia v. Westchester

Cnty. Bd. of Legislators, 852 F. App’x 30, 32 (2d Cir. 2021). In dicta in Rucho v.

Common Cause, the Supreme Court emphasized that: “This Court has several times

concluded . . . that the Guarantee Clause does not provide the basis for a justiciable

6 Defendants have moved to dismiss NYSCEAM for lack of standing on the basis that they did

not allege sufficient facts in the Complaint to establish associational standing. Given that

Defendants do not dispute that the individual Plaintiffs have standing, and because the question

of NYSEAM’s standing has no bearing on the merits of the case, the Court declines to address

this issue. See Kwong v. Bloomberg, 723 F.3d 160, 162 n.4 (2d Cir. 2013) (declining to address

organizational standing question where individual plaintiffs had standing).

claim.” 139 S. Ct. 2484, 2506 (2019). Nevertheless, courts have still found that

judicial review might be possible “even though no such claim has yet survived

Supreme Court review.” See Democratic Party of Wisconsin v. Vos, 966 F.3d 581,

589 (7th Cir. 2020) (declining to “interpret Rucho or any other decision by the

Supreme Court as having categorically foreclosed all Guarantee Clause claims as

nonjusticiable[,]” and finding that district court “went too far in saying that no

Guarantee Clause claim could proceed to adjudication on the merits”). Claims are

“non-justiciable where ‘political’ in nature and where there is a clear absence of

judicially manageable standards.” Reynolds v. Sims, 377 U.S. 533, 582 (1964)

(citing Baker v. Carr, 369 U.S. 186, 217-32 (1962)).

Several district courts have declined to find a justiciable Guarantee Clause

claim in the context of New York’s COVID-19 enactments. In Lewis v. Cuomo, the

court dismissed as non-justiciable a Guarantee Clause claim that the New York

legislature’s delegation of emergency powers to Governor Cuomo during the

pandemic deprived them of a republican form of government. 575 F. Supp. 3d 386,

397-99 (W.D.N.Y. 2021). Similarly, in Mongielo v. Hochul, a court dismissed a

claim under the Guarantee Clause that the state legislature’s delegation to Governor

Hochul deprived them of a republican form of government where Governor Hochul

enacted a mask mandate in New York public schools. No. 22-CV-116-LJV, 2023

WL 2307887, at *11-12 (W.D.N.Y. Mar. 1, 2023). In both cases, the courts declined

to find that question raised was “one of the rare cases in which a Guarantee Clause

claim might be justiciable.” Lewis, 575 F. Supp. 3d at 398.

While the Court is mindful that there may be some rare Guarantee Clause

question that gives rise to a justiciable claim, Plaintiffs’ claim is not that exception.

Plaintiffs argue that the United States and New York constitutions, the major

questions doctrine, and statutory interpretation provide a clear, manageable standard

to discern how UCS’s Vaccine Mandate deprived them of a republican form of

government. But the Court can discern no such standard under those doctrines that

could guide its analysis here. Indeed, such an expansive reading of the Guarantee

Clause would run contrary to the Supreme Court’s repeated finding that Guarantee

Clause claims by and large do not give rise to provide justiciable questions. See

Rucho, 139 S. Ct. at 2506.

Even if Plaintiffs claim was justiciable, however, it is without merit. The text

of the Guarantee Clause “does not require a particular allocation of power within

each state so long as a republican form of government is preserved.” Largess v.

Supreme Jud. Ct. for State of Massachusetts, 373 F.3d 219, 227 (1st Cir. 2004)

(emphasis in original). Likewise, the Guarantee Clause is not violated when

“States . . . retain the ability to set their legislative agendas” and when “state

government officials remain accountable to the local electorate.” Kerpen v. Metro.

Washington Airports Auth., 907 F.3d 152, 163 (4th Cir. 2018) (quoting New York v.

United States, 505 U.S. 144, 186 (1992)). As explained below, and as multiple other

courts have found, UCS promulgated the Vaccine Mandate pursuant to its

“constitutionally delegated authority to enact policies that enable it to meet its

constitutional obligations of facilitating public access to the courts.” See, e.g.,

Brignall, No. E2022-0241CV, 2022 WL 17543641, at *3. Plaintiffs cannot

plausibly allege that this properly authorized rule, enacted by New York’s

constitutionally empowered judicial branch, and applicable only to that branch’s

employees and personnel, “encroached” upon the power of the legislature. Pls’

Mem. Of Law in Opp’n 11.

For these reasons, Defendants’ motion to dismiss Plaintiffs claim under the

Guarantee Clause is granted.

ii. Violation of N.Y. Const. Art. III Section 1

In their second claim, Plaintiffs allege that Defendant OCA has implemented

a public health measure for its employees that exceeds its scope of authority under

N.Y. Const. Article VI. In doing so, Plaintiffs claim that Defendants have violated

the separation of powers doctrine by usurping the New York legislature’s authority

under the New York constitution Article III, Section 1. Plaintiffs argue that only the

New York legislature may consider whether New York citizens must get vaccinated.

Defendants have moved to dismiss on the grounds that UCS was authorized to

implement the Vaccine Mandate under its constitutionally delegated supervisory

authority and the Vaccine Mandate does not implicate separation-of-powers

principles.

Turning to the first issue, the Court recognizes that this precise legal question

has already been addressed by at least two courts. In Ferrelli v. State of New York,

UCS employees who were terminated for their violation of the Vaccine Mandate

after their requests for religious exemptions were denied brought suit in New York

state court alleging, among other things, that Chief Administrative Judge Marks

“lacked the legal authority to issue the [vaccine mandate].” No. 031506/2022,

NYSCEF 74 at 19-22. The court granted defendants motion to dismiss on the

grounds that the Vaccine Mandate was squarely within USC’s and Chief

Administrative Judge Marks’ authority under Article VI, Section 28 of the New

York constitution and 22 NYCRR § 80.1(a). Id. In Brignall, UCS employees sought

to enjoin the Vaccine Mandate, in part because Defendants had enacted it “in excess

of their jurisdiction.” No. E2022-0241CV, 2022 WL 17543641, at *2 (N.Y. Sup.

Ct. Apr. 13, 2022). There, the court declined to preliminarily enjoin the Vaccine

Mandate, and found that UCS issued the Vaccine Mandate: “pursuant to its

constitutionally delegated authority to enact policies that enable it to meet its

constitutional obligations of facilitating public access to the courts.” Id. at *3.

The Court can see no basis to deviate from these determinations here. The

Court agrees that Chief Administrative Judge Marks is “expressly authorized” under

Article VI, § 28 to “supervise the administration and operation of [UCS],” and that

22 NYCRR § 80.1(a), in accordance with Article VI, § 28, delineates a

“conspicuously broad” list of specific supervisory powers of the Chief

Administrative Judge, including “any additional powers and . . . duties as assigned

by the Chief Judge.” Ferrelli, No. 031506/2022, NYSCEF 74 at 19-20. The Court

cannot find that the Vaccine Mandate, as a matter of administrative policy, exceeds

this broad scope of authority; accordingly, pursuant to Federal Rule of Civil

Procedure 12(b)(6), Plaintiffs have failed to plausibly allege that Defendants

exceeded their scope of authority under Article VI by enacting the Vaccine

Mandate.7

Turning to the separation of powers question, the Court also finds that

Plaintiffs have failed to allege a plausible claim. “Separation of powers challenges

7 Plaintiffs’ argument that the Vaccine Mandate was enacted outside the bounds of UCS

procedure fails for the reasons explained in Ferrelli v. State of New York, No. 031506/2022,

NYSCEF 74 at 19-22 (“This Court agrees with Respondents that the policy is not of the sort that

must go through the public comment process before implementation.”).

often involve the question of whether a regulatory body has exceeded the scope of

its delegated powers and encroached upon the legislative domain of policymaking.”

Garcia v. New York City Dep’t of Health & Mental Hygiene, 31 N.Y.3d 601, 608,

(2018). Here, OCA is not an agency with delegated authority—it is the

administrative arm of New York judicial branch. To wit, it acts under the judicial

branch’s own constitutional authority. This means that the health and safety rules

promulgated by OCA during the pandemic do not infringe upon or implicate the

New York legislature’s own authority under Article III, Section 1, as there has been

no delegation.

For these reasons, Plaintiffs second claim is dismissed.

iii. Plaintiff’s § 1983 Claims

Plaintiffs bring three claims under 42 U.S.C. § 1983.8 First, for violation of

Plaintiffs’ rights under the substantive due process doctrine on the basis that the

mandatory vaccine policy improperly deprived them of their fundamental right to

8 Although Plaintiffs’ seventh claim is not explicitly brought under § 1983, the Court reads it as

such in light of Plaintiffs’ requested relief of money damages and attorney fees, and in light of

the Parties’ briefing.

control their cellular biology.9 Second, for violation of Plaintiffs’ rights under the

Equal Protection Clause of the United States Constitution. And, third, on the basis

that Vaccine Mandate was arbitrary and capricious in violation of the Fourteenth

Amendment to the United States Constitution and Article I, Section 6 of the New

York Constitution.

As a preliminary matter, the claims against UCS and OCA are barred because

they “are not ‘persons’ within the meaning of 42 U.S.C. § 1983.” Brown v. New

York State Unified Ct. Sys., 261 F. App’x 307, 307-08 (2d Cir. 2008) (citing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Additionally, the § 1983

claims against individual Defendants in their official capacities are barred by the

Eleventh Amendment. See, e.g., Cramer v. Pyzowski, 2007 WL 1541393, at *5

(E.D.N.Y. May 25, 2007).

This leaves only Plaintiffs’ sought declaratory judgment on their Equal

Protection Cause claim. Here, Plaintiffs allege that the policy made three arbitrary

classifications: (i) between Plaintiffs who are still employed pursuant to a religious

9 In their Complaint, Plaintiffs additionally claim that their termination violated their right to

substantive due process for violation of their right to continued employment. Because Plaintiffs

explain in their memorandum of law that their substantive due process claim is specifically about

their fundamental right to control their cellular biology, and because Plaintiffs have withdrawn

their claim for a violation of procedural process, the Court considers this portion of Plaintiffs’

claim abandoned.

exemption but are required to test weekly and report status updates daily, and

employees with expired vaccinations who do not have to test at all; (ii) between

Plaintiffs and unvaccinated non-staff who entered courthouses; and (iii) between

Plaintiffs and vaccinated employees on the basis that unvaccinated Plaintiffs could

still be immune to COVID-19. None of these classifications trigger heightened

scrutiny. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-441

(1985). Accordingly, they will be upheld if they satisfy rational basis review.

Rational basis review is a highly deferential test whereby challenged policies

are presumptively constitutional. See Maniscalco v. N.Y.C. Dep’t of Educ., 563 F.

Supp. 3d 33, 41 (E.D.N.Y. 2021). The policy in question will be upheld so long as

the underlying classification is “rationally related to a legitimate governmental

purpose.” Id. As multiple other courts have found, the distinction between

vaccinated and non-vaccinated persons “has an amply rational basis.” Abadi v. City

of New York, 2022 WL 347632, at *9 (S.D.N.Y. Feb. 4, 2022). Each of the

classifications that Plaintiffs have proffered are rationally related to the legitimate

objective of minimizing the spread of COVID-19 in New York courthouses.

In light of the ambiguity concerning Plaintiffs’ seventh claim, the Court also

addresses the merits of that claim. See supra note 8. Under the Fourteenth

Amendment to the United States Constitution,10 substantive due process affords

“protection of the individual against arbitrary action of government,” but “only the

most egregious official conduct can be said to be arbitrary in the constitutional

sense,” such that “the cognizable level of [] abuse of power is that which shocks the

conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (cleaned

up). [C]onduct intended to injure in some way unjustifiable by any government

interest is the sort of official action most likely to rise to the conscience-shocking

level.” Id. at 849.

Here, Plaintiffs have failed to plausibly allege conduct that meets this high

bar. In so holding, the Court joins comparable decisions where courts have found

that mandating vaccine requirements does not shock the conscience. Heidel v.

Hochul, No. 20-CV-10462 (PKC), 2021 WL 4942823, at *13 (S.D.N.Y. Oct. 21,

2021), aff’d sub nom. Heidel v. Governor of New York State, No. 21-2860-CV, 2023

WL 1115926 (2d Cir. Jan. 31, 2023); Maniscalco, 563 F. Supp. at 39.

iv. Conspiracy to Interfere with Civil Rights pursuant to § 1985(3)

In their fourth claim, Plaintiffs assert that Defendants conspired to deprive

Plaintiffs of their rights under the Free Exercise Clause of the First Amendment.

10 Plaintiffs’ claim under New York’s constitution fails for the same reason. See Prince v. Cnty.

of Nassau, 837 F. Supp. 2d 71, 107-08 (E.D.N.Y. 2011).

They allege that Defendants entered into an agreement to issue a predetermined

percentage of religious exemption applications and created the supplemental forms

in furtherance of this conspiracy. According to Plaintiffs, the supplemental form to

the religious exemption application relied on unlawful criteria to “box every

applicant into a corner.” Compl. 31. Defendants move to dismiss on the grounds

that: (1) Plaintiffs’ § 1985(3) claim is precluded by the intracorporate conspiracy

doctrine; (2) Plaintiffs have not alleged a plausible conspiracy; (3) Plaintiffs have

failed to allege a predicate constitutional right that was violated by the Vaccine

Mandate; and (4) Defendants are shielded by qualified immunity.

To state a civil rights conspiracy under § 1985(3), a plaintiff must allege: (1)

a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal privileges

and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)

whereby a person is either injured in his person or property or deprived of any right

or privilege of a citizen of the United States. Gray v. Town of Darien, 927 F.2d 69,

73 (2d Cir. 1991). “[A] plaintiff must provide some factual basis supporting a

meeting of the minds, such that defendants entered into an agreement, express or

tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)

(quotation omitted). A § 1985(3) “conspiracy must also be motivated by some racial

or perhaps otherwise class-based, invidious discriminatory animus behind the

conspirators’ action.” Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (cleaned

up).

Here, Plaintiffs’ Complaint fails because they have failed to “plead a

conspiracy—or common agreement to violate the law—between two or more

persons.” Farbstein v. Hicksville Pub. Libr., 254 F. App’x 50, 51 (2d Cir. 2007).

Under the intracorporate conspiracy doctrine, “officers, agents, and employees of a

single corporate or municipal entity, each acting within the scope of his or her

employment, are legally incapable of conspiring with each other.” Rodriguez v. City

of New York, 644 F. Supp. 2d 168, 200 (E.D.N.Y. 2008); see also Herrmann v.

Moore, 576 F.2d 453, 459 (2d Cir. 1978) (recognizing that that “there is no

conspiracy [under § 1985] if the conspiratorial conduct challenged is essentially a

single act by a single corporation acting exclusively through its own directors,

officers, and employees, each acting within the scope of his employment”).

Plaintiffs’ alleged conspirators are all employees of the New York judiciary, and

therefore are legally incapable of conspiring with each other under § 1985(3).

Neither have Plaintiffs alleged, beyond conclusory allegations, that Plaintiffs

were acting outside the scope of their employment. A conspirator acts outside the

scope of their employment when they are “acting in their personal interests, wholly

and separately from the . . . municipal entity.” Rodriguez, 644 F. Supp. 2d at 201.

Plaintiffs ask the Court to infer that Defendants Justin Barry, Chief Judge DiFiore,

and Chief Administrative Judge Marks “had personal animus with pro life beliefs,”

Pls’ Mem. Of Law in Opp’n 23, but the Court can make no such inference from the

facts of the Complaint. Plaintiffs may take legitimate issue with the terms and

process of UCS’s Vaccine Mandate and the religious exemption—but this alone

does not provide a plausible factual showing that Defendants were acting “wholly

and separately” from UCS in promulgating the policy. For these reasons, Plaintiffs

claims under § 1985(3) are dismissed.

III. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss Plaintiffs’ claim

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is granted: Plaintiffs’

claim under the Guarantee Clause of the United States Constitution is dismissed as

non-justiciable; Plaintiffs’ claim that Defendants’ Vaccine Mandate was enacted

without authority and in violation of separation of powers principles is dismissed for

failure to state a plausible claim; Plaintiffs’ claims under § 1983 are dismissed

because UCS and OCA are not persons under the statute, because the individual

Defendants cannot be sued in their official capacity pursuant to the Eleventh

Amendment, because Plaintiffs’ Equal Protection Claim cannot pass rational basis

review, and because the Vaccine Mandate does not shock the conscience in violation

of the Fourteenth Amendment to the United States Constitution; and, Plaintiffs’

§ 1985(3) claim is dismissed under the intracorporate conspiracy doctrine. As all

other claims have been abandoned, Plaintiffs’ Complaint is dismissed.

SO ORDERED.

_/S/ Frederic Block__________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

October 26, 2023