Jones v. Cuomo, in his official capacity as the Governor of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JEFFREY D. JONES,

Plaintiff,

-v.-

20 Civ. 4898 (KPF)

ANDREW M. CUOMO, in his official capacity as

the Governor of the State of New York; and OPINION AND ORDER

HOWARD ZUCKER, M.D., in his official capacity

as the Commissioner of the Department of

Health of New York,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Jeffrey Jones, an attorney proceeding pro se, filed this action

against Governor Andrew Cuomo and New York State Department of Health

(“DOH”) Commissioner Howard Zucker, M.D., in their official capacities

(collectively, “Defendants”). In it, Plaintiff raised various constitutional

challenges to Governor Cuomo’s Executive Order No. 205: Quarantine

Restrictions on Travelers Arriving in New York (hereinafter, the “Executive

Order”), which at the time Plaintiff filed his Amended Complaint imposed a

self-quarantine requirement on certain persons entering New York State. In

particular, Plaintiff argued that the Executive Order violated several of his

rights under the U.S. Constitution, including: (i) the right to interstate

travel; (ii) the Privileges and Immunities Clause of Article IV; (iii) the

Fourteenth Amendment’s Equal Protection Clause; and (iv) the Contracts

Clause of Article I. In addition, Plaintiff argued that the Executive Order

Defendants have moved to dismiss the Amended Complaint pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that

follow, Defendants’ motion is granted.

BACKGROUND1

A. Factual Background

1. The Parties and Executive Order No. 205

Over the course of 2020, New York State enacted a series of evolving

emergency actions in response to the COVID-19 pandemic. (See FAC ¶ 23).

One such action was Executive Order No. 205, issued by Governor Cuomo

on June 24, 2020. (See id. at ¶¶ 29-30). The Order directed Health

Commissioner Zucker to issue a travel advisory stating that:

All travelers entering New York from a state with a

positive test rate higher than 10 per 100,000

residents, or higher than a 10% test positivity rate,

over a seven-day rolling average, will be required to

1 The facts in this Opinion are drawn in part from Plaintiff’s Amended Complaint (the

“FAC” (Dkt. #3)), the well-pleaded allegations of which are taken as true for the

purposes of this motion. When considering a motion made pursuant to Rule

12(b)(6), the Court may take judicial notice of “documents retrieved from official

government websites,” see Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127

F. Supp. 3d 156, 166 (S.D.N.Y. 2015), or other “relevant matters of public record,”

see Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012); see also Fed. R. Evid.

201(b) (permitting judicial notice of facts “not subject to reasonable dispute”). For

this reason, the Court draws additional facts from certain exhibits appended to the

declaration of Bryon Backenson submitted in support of Defendants’ motion to

dismiss (“Backenson Decl., Ex.[]” (Dkt. #18)), which exhibits contain documents

retrieved from official government websites. These documents include: the July 9,

2020 World Health Organization (“WHO”) Transmission of SARS-CoV-2 Scientific

Brief (“WHO Scientific Brief” (Backenson Decl., Ex. F)), and the New York State

Department of Health’s (“DOH”) June 24, 2020 Interim Guidance for Quarantine

Restrictions on Travelers Arriving in New York State Following Out of State Travel

(“DOH Interim Guidance” (id., Ex. O)). The transcript of the July 2, 2020

proceedings in Corbett v. Cuomo, No. 20 Civ. 4864 (LGS) (S.D.N.Y.), is referred to as

“Corbett Tr.” (Dkt. #19-1). Moreover, where relevant, the Court acknowledges New

quarantine for a period of 14 days consistent with

Department of Health regulations for quarantine.

(See Executive Order). Any violation of the quarantine requirement was

enforceable pursuant to Article 21 of New York’s Public Health Law, and

non-compliance could subject the violator to a civil penalty of up to $10,000.

(Id.).

Pursuant to the Executive Order, Health Commissioner Zucker issued

“Interim Guidance for Quarantine Restrictions on Travelers Arriving in New

York State Following Out of State Travel.” (See DOH Interim Guidance).

The DOH Interim Guidance provides that states falling within the Executive

Order’s positivity criteria would be identified based on the “tables posted

publicly by all 50 states,” with “[a]nalysis of the metrics … conducted weekly

to determine if travelers from other states qualify.” (Id. at 2). The

“restricted” states with “significant community spread” were, in turn,

“conspicuously posted” on the DOH website, with updates posted weekly.

(Id.). At the time the Executive Order was enacted, approximately ten states

met or exceeded its positive test rate threshold. (FAC ¶ 31).

Plaintiff is an attorney who resides in Oklahoma. (FAC ¶ 2). At the

time Plaintiff filed his Amended Complaint, Oklahoma’s positive test rate

remained below the Executive Order’s threshold. (Id. at ¶ 4). However,

Plaintiff alleged that he had recently traveled to Arkansas, and that travelers

from that state were subject to the Executive Order’s quarantine

requirement at that time. (Id. at ¶ 58).

clients in employment disputes in New York State. (Id. at ¶¶ 4-5). At the

time Plaintiff filed his Amended Complaint, he was representing multiple

New York-based clients in cases where court hearings, mediations, and

depositions had been scheduled to take place in New York. (Id. at ¶ 60).

Plaintiff alleged that because he had recently traveled to Arkansas, were he

to travel to New York, he would be required to self-quarantine for fourteen

days under the terms of the Executive Order. (Id. at ¶ 58). He further

alleged that were he subjected to this requirement each time he visited New

York for business, he would be unable to “properly service” his New York-

based clients. (Id. at ¶¶ 59-60).

2. Subsequent Developments in New York State Quarantine

Requirements

The Executive Order has been superseded by subsequent executive

orders and travel guidelines since the filing of Plaintiff’s Amended

Complaint. See, e.g., Executive Order No. 205.1 (Sept. 28, 2020); Executive

Order No. 205.2 (Oct. 31, 2020); Executive Order No. 205.3 (Dec. 30, 2020).

Most recently for these purposes, on April 10, 2021, the DOH issued its

“Updated Interim Guidance for Travelers Arriving in New York State (NYS)”

(the “Updated Interim Guidance”). This guidance applies to all travelers,

including New Yorkers and those visiting from out-of-state or another

country. Pursuant to this guidance, New York State’s current COVID-19

travel advisory provides:

Asymptomatic travelers entering New York from

another country, U.S. state, or territory are no longer

laboratory confirmed COVID-19 during the previous 3

months. Symptomatic travelers must immediately self-

isolate and contact the local health department or their

healthcare providers to determine if they should seek

COVID-19 testing.

New York State COVID-19 Travel Advisory,

https://coronavirus.health.ny.gov/covid-19-travel-advisory (last visited

May 30, 2021) (emphasis in original).

B. Procedural Background

The day after the Executive Order was issued, on June 25, 2020,

Plaintiff initiated this action with the filing of his Complaint. (Dkt. #1). Five

days later, on June 30, 2020, Plaintiff filed his Amended Complaint, which

is the operative pleading in this action. (Dkt. #2).

On September 14, 2020, Defendants filed a letter seeking a pre-

motion conference regarding their anticipated motion to dismiss (Dkt. #13),

and on September 17, 2020, Plaintiff opposed their application (Dkt. #14).

The following day, the Court declined to hold a pre-motion conference and

set a briefing schedule for Defendants’ anticipated motion. (Dkt. #15).

Pursuant to that schedule, Defendants filed their motion to dismiss and

supporting papers on October 16, 2020 (Dkt. #16-19); Plaintiff filed his

opposition brief on November 13, 2020 (Dkt. #20); and briefing concluded

with the submission of Defendants’ reply brief and supporting papers on

November 30, 2020 (Dkt. #21-22).

DISCUSSION

A. Applicable Law

state a claim to relief that is plausible on its face.” 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.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). A complaint that contains only “naked

assertions” or “a formulaic recitation of the elements of a cause of action”

does not suffice. Twombly, 550 U.S. at 555. The Court must accept as true

all well-pleaded factual allegations in the complaint. See Iqbal, 556 U.S. at

678.

Plaintiff is a licensed attorney who is proceeding pro se. Although the

pleadings of pro se parties are typically “held to less stringent standards

than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89,

94 (2007) (internal quotation marks omitted), the law is clear that “pro

se attorneys ... ‘cannot claim [this] special consideration,’” Holtz v.

Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (quoting Harbulak v.

County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981)); see also Tracy v.

Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (collecting cases supporting the

proposition that “a lawyer representing himself ordinarily receives no

[special] solicitude”); Abraham v. Leigh, 471 F. Supp. 3d 540, 553 (S.D.N.Y.

2020), reconsideration denied, No. 17 Civ. 5429 (KPF), 2020 WL 5095655

(S.D.N.Y. Aug. 28, 2020).

B. Analysis

1. The Case Is Not Moot

rollout of COVID-19 vaccines and the concomitant decline in positive test

results. At the time the instant motion was briefed, Defendants did not

move to dismiss on mootness grounds, though they did indicate that the

Court should consider the Amended Complaint in light of amendments to

the Executive Order in effect at the time of briefing. (See Def. Reply Mem. 1-

2 (discussing Executive Order 205.2)). However, when a case becomes

moot, a district court no longer has subject matter jurisdiction, see Fox v.

Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994), and courts

may consider whether they have subject matter jurisdiction sua sponte at

any stage of the litigation, see Fed. Dep. Ins. Corp. v. Four Star Holding Co.,

178 F.3d 97, 100 n.2 (2d Cir. 1999). For this reason, the Court begins by

addressing the threshold issue of whether it continues to retain subject

matter jurisdiction, i.e., whether this case has been mooted by subsequent

developments in New York State’s quarantine requirements.

Under the “case or controversy” requirement of Article III of the

Constitution, “at all times, the dispute before the court must be real and

live, not feigned, academic, or conjectural.” Russman v. Bd. of Educ. of

Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 118 (2d Cir.

2001). A case is moot, and therefore no longer a case or controversy for the

purposes of Article III, “when the issues presented are no longer live or the

parties lack a legally cognizable interest in the outcome.” Already, LLC v.

Nike, Inc., 568 U.S. 85, 91 (2013) (internal quotation marks omitted).

There is, however, a well-recognized exception to the mootness

567 U.S. 298, 307 (2012). However, a voluntary change of conduct moots a

case where a defendant can demonstrate that “[i] there is no reasonable

expectation that the alleged violation will recur and [ii] interim relief or

events have completely and irrevocably eradicated the effects of the alleged

violation.” Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 603 (2d Cir.

2016). Against this background, the Court will consider whether Plaintiff’s

Amended Complaint has been rendered moot by superseding guidance, or

whether the voluntary cessation exception applies.

As discussed above, the Executive Order was subsequently

superseded by further executive orders, and most recently, by the Updated

Interim Guidance. At this time, New York State no longer requires that

asymptomatic travelers quarantine, regardless of the state from whence they

came. Plaintiff’s Amended Complaint thus challenges the enforcement of a

quarantine requirement that is no longer in effect.

That said, in recent months, the Supreme Court has provided

guidance for assessing mootness in challenges to COVID-19 restrictions. In

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per

curiam), wherein plaintiffs moved for emergency injunctive relief against

Governor Cuomo’s restrictions on in-person worship services, the Supreme

Court determined that the Governor’s modification of the restrictions at

issue had not rendered the case moot. Id. at 68. The Court explained that

“injunctive relief is still called for because the applicants remain under a

constant threat … [of being] bar[red] … from attending services before

government withdraws or modifies a COVID restriction in the course of

litigation, that does not necessarily moot the case.” Id. at 1297.

A sister court in this District derived “two mootness principles” from

these decisions:

[i] a lawsuit brought against COVID restrictions is not

simply moot because the restrictions at issue have been

rescinded; and [ii] if the COVID restrictions (at issue)

have been rescinded in the course of litigation, the

relevant inquiry is whether the plaintiff remains under

a ‘constant threat’ of those restrictions being

reintroduced in the future.

Hopkins Hawley LLC v. Cuomo, No. 20 Civ. 10932 (PAC), 2021 WL 1894277,

at *4 (S.D.N.Y. May 11, 2021). The court applied these principles to

determine whether a challenge to certain restrictions on indoor and outdoor

restaurant dining had been rendered moot, and concluded that despite the

revocation of those restrictions, plaintiffs remained “under the ‘constant

threat’ of confronting the [restrictions] again” and thus the case was not

moot. Id.

Since the Roman Catholic Diocese and Tandon decisions, a number of

courts have similarly declined to dismiss COVID-19 restriction lawsuits on

mootness grounds. See Hopkins Hawley LLC, 2021 WL 1894277, at *4

(collecting cases); see also Amato v. Elicker, No. 20 Civ. 464 (MPS), 2021 WL

1430918, at *4 (D. Conn. Apr. 15, 2021) (determining that plaintiffs’

challenges to various COVID-19 restrictions were not moot under voluntary

cessation exception where the Governor of Connecticut “[could not] say with

certainty that it will never be necessary to re-impose restrictions in the

details of Idaho’s Stay Healthy Orders, it appears reasonably likely that the

restrictions will not be reimposed at a future time”).

In recent months, New York State, as well as much of the United

States, has made progress towards the resumption of “normal” life, largely

because of improved vaccine availability and the overall decline in COVID-19

cases and hospitalizations. However, it remains the case that “the only

certainty about the future course of this pandemic is uncertainty.” Hopkins

Hawley LLC, 2021 WL 1894277, at *4. Moreover, as the district court

observed in Hopkins Hawley, Governor Cuomo retains the ability to extend

or modify currently existing COVID-19 restrictions so long as he: (i) gives

five days’ notice to the state legislature and affected municipalities; and (ii)

provides an opportunity for the political branches to offer feedback on his

proposed directives. Id. at *4 n.3 (discussing Act of March 7, 2021, ch. 71,

2021 N.Y. Laws 5357). Given the unpredictability of the ongoing pandemic

and the ensuing public health response to it, as signified by Governor

Cuomo’s retention of the authority to reintroduce COVID-19 restrictions, the

Court finds that Plaintiff remains under a “constant threat” of re-confronting

the quarantine requirement. Accordingly, this case is not moot, and the

Court will consider the merits of Defendants’ motion to dismiss under Rule

12(b)(6).

2. Plaintiff’s Claims Fail to Withstand Scrutiny

In brief, Plaintiff alleges that the Executive Order creates a “dirty list”

of states that meet the Order’s threshold for COVID-19 test positivity rates.

only the former group is required to quarantine for fourteen days upon

arrival. (See id. at ¶¶ 45-46). Plaintiff further submits that the Executive

Order is not the “least restrictive means to accomplish the government’s

compelling interest in maintaining and protecting public health.” (Id. at

¶ 42). Accordingly, Plaintiff asserts violations of: (i) the right to interstate

travel; (ii) the Privileges and Immunities Clause of Article IV; (iii) the

Fourteenth Amendment’s Equal Protection Clause; and (iv) the Contracts

Clause of Article I. (See id. at ¶¶ 63-79). Plaintiff also submits that the

Executive Order is unconstitutionally vague. (Id. at ¶ 34).2

As relevant here, Defendants argue that these claims should be

dismissed under the standard for assessing emergency health measures set

forth in Jacobson v. Massachusetts, 197 U.S. 11 (1905). (Def. Br. 5-7). In

the alternative, they submit that Plaintiff’s claims suffer from various

pleading deficiencies (id. at 8-11), and that in any event, the Executive Order

would withstand even strict scrutiny review (id. at 11-12). The Court agrees

with Defendants that the Executive Order passes muster under either the

Jacobson standard or the traditional mode of constitutional analysis.

2 At the outset, the Court dismisses Plaintiff’s Contract Clause and vagueness claims,

as well as any claims for damages. In Plaintiff’s opposition brief, he expresses his

intent to withdraw his Contracts Clause claim. (Pl. Opp. 14). Further, Plaintiff’s

briefing fails to respond to Defendants’ arguments in favor of the dismissal of his

vagueness and money damages claims, and the Court will thus consider those

claims conceded. See AT & T Corp. v. Syniverse Techs., Inc., No. 12 Civ. 1812 (NRB),

2014 WL 4412392, at *7 (S.D.N.Y. Sept. 8, 2014) (finding that plaintiff’s “silence

concedes the point” where it failed to discuss opponent’s argument in its opposition

brief); In re UBS AG Secs. Litig., No. 07 Civ. 11225 (RJS), 2012 WL 4471265, at *11

(S.D.N.Y. Sept. 28, 2012) (same); see also Jennings v. Hunt Cos., 367 F. Supp. 3d

a. The Jacobson Standard of Review

The Court will first address the applicable standard of review.

Defendants would have the Court apply the deferential framework set forth

in Jacobson, pursuant to which states and local authorities are granted

substantial deference in enacting measures “to prevent the spread of

contagious diseases” during public health crises. 197 U.S. at 35. Under

Jacobson, a state or local law “enacted to protect the public health” will

survive judicial scrutiny unless it bears “no real or substantial relation to

[the public health], or is, beyond all question, a plain, palpable invasion of

rights secured by the fundamental law[.]” Id. at 31. While Jacobson

“predated the modern constitutional jurisprudence of tiers of scrutiny,”

Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020), it has

been likened to rational basis review, see Roman Catholic Diocese, 141 S. Ct.

at 70 (Gorsuch, J., concurring).

In his opposition, Plaintiff contends that the Court’s holding in

Jacobson was confined to the Massachusetts mandatory vaccination statute

challenged in the case. (See Pl. Opp. 6-10). Plaintiff argues that the Court

should instead apply strict scrutiny because the Executive Order burdens a

fundamental right — the right to travel. (Id. at 10-11).

In the early days and months of the COVID-19 pandemic, a number of

courts both within and outside this Circuit applied the Jacobson framework

in considering challenges to state and local COVID-19 restrictions. See Our

Wicked Lady LLC v. Cuomo, No. 21 Civ. 165 (DLC), 2021 WL 915033, at *3

the Jacobson framework produced a patently erroneous result”). Indeed, in

August of last year, a court in the Northern District of New York rejected a

similar challenge to the Executive Order at issue here, finding that the Order

was constitutional under Jacobson. See Page v. Cuomo, 478 F. Supp. 3d

355, 366 (N.D.N.Y. 2020) (collecting cases), appeal filed, No. 20-2704 (2d

Cir. Aug. 13, 2020). And one month prior to the decision in Page, in

assessing a plaintiff’s application for preliminary relief from the Executive

Order’s quarantine requirement, a sister court in this District indicated that

“the general principles of Jacobson … should inform any ‘strict scrutiny’

analysis.” (Corbett Tr. 26:1-26:3).

Since the submission of Plaintiff’s opposition brief, his position has

been bolstered by a recent decision from the Supreme Court calling into

question the continued applicability of Jacobson. As discussed above, in a

per curiam opinion in Roman Catholic Diocese, the Supreme Court

temporarily enjoined the enforcement of a New York executive order that

placed restrictions on in-person religious services. 141 S. Ct. at 63. In

reaching this determination, the Court undertook a traditional

constitutional analysis of Plaintiffs’ First Amendment free exercise claims,

and found that the executive order was unable to withstand strict scrutiny.

Id. at 66-68. Any discussion of or reference to the Jacobson standard is

notably absent from the Court’s decision. Instead, in a concurring opinion,

Justice Gorsuch indicated that the “usual constitutional standards should

apply during the current pandemic.” Id. at 71 (Gorsuch, J., concurring).

overshadows the Constitution[.]” Id. Justice Gorsuch emphasized that

Jacobson “involved an entirely different mode of analysis, an entirely

different right, and an entirely different kind of restriction.” Id. at 70.3

On remand, the Second Circuit determined that the parties’ and lower

courts’ reliance on Jacobson “as support for the notion that courts should

defer to the executive in the face of the COVID-19 pandemic” “was

misplaced.” Agudath Israel of Am., 983 F.3d at 635. The Court observed

that Jacobson “predated” the “tiers of scrutiny,” “was decided before the

First Amendment was incorporated against the states, and ‘did not address

the free exercise of religion.’” Id. (quoting Phillips v. City of New York, 775

F.3d 538, 543 (2d Cir. 2015)).

In the wake of the Roman Catholic Diocese decision, some courts’

confidence in Jacobson has similarly waned. See, e.g., Amato, 2021 WL

1430918, at *7 & n.11 (applying traditional tiers of scrutiny to COVID-19

restrictions); Plaza Motors of Brooklyn v. Cuomo, No. 20 Civ. 4851 (WFK)

(SJB), 2021 WL 222121, at *4-5 (E.D.N.Y. Jan. 22, 2021) (declining to apply

Jacobson to challenge of the same executive order at issue in Roman

Catholic Diocese). However, other courts in this Circuit have cabined the

Roman Catholic Diocese decision to First Amendment free exercise

challenges, and have continued to apply Jacobson to other challenges to

3 Four months prior to Roman Catholic Diocese, Justice Alito also expressed the view

that Jacobson does not provide the “last word on what the Constitution allows

public officials to do during the COVID-19 pandemic.” See Calvary Chapel Dayton

COVID-19 restrictions. See Hopkins Hawley LLC v. Cuomo, No. 20 Civ.

10932 (PAC), 2021 WL 465437, at *5 (S.D.N.Y. Feb. 9, 2021) (“Although

Roman Catholic Diocese and Agudath Israel raise doubts as to Jacobson’s

continuing viability, Jacobson bears directly on this case and has not been

explicitly overruled, which means that this Court is bound by it.”); see also

Our Wicked Lady, 2021 WL 915033, at *3; Moxie Owl, Inc. v. Cuomo, No. 21

Civ. 194 (MAD) (DJS), 2021 WL 1402297, at *2 *n.1 (N.D.N.Y. Mar. 18,

2021). And a number of courts in other circuits have taken similar

approaches. See, e.g., Big Tyme Inv., L.L.C. v. Edwards, 985 F.3d 456, 470-

71 (5th Cir. 2021) (holding that Jacobson “govern[s] our review of emergency

public health measures, regardless of the rights at stake.”); Stewart v.

Justice, No. 20 Civ. 611 (RCC), 2021 WL 472937, at *3 (S.D.W. Va. Feb. 9,

2021) (“[T]he Court declines to read the tea leaves of Roman Catholic

Diocese and will follow the [Jacobson] rule adopted by a majority of courts.”);

M. Rae, Inc. v. Wolf, No. 20 Civ. 2366 (CCC), 2020 WL 7642596, at *6 (M.D.

Pa. Dec. 23, 2020) (“The bottom line for our purposes is that Jacobson is

controlling precedent until the Supreme Court or Third Circuit Court of

Appeals tell us otherwise.”).

More recently, a sister court in this District held that Jacobson

remained applicable on stare decisis grounds, reasoning that if a Supreme

Court decision “‘has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the [lower court] should

follow the case which directly controls, leaving to [the Supreme] Court the

490 U.S. 477, 484 (1989)). The Court finds this reasoning persuasive. That

said, in an abundance of caution, the Court will assess the Executive Order

and Plaintiff’s claims thereto under both Jacobson and the traditional tiers

of scrutiny.

b. The Executive Order Passes Muster Under Jacobson

Other courts in this Circuit have previously determined that the

Executive Order and its successors are likely to pass muster under

Jacobson, and this Court sees no basis to depart from their reasoning. See

Page, 478 F. Supp. 3d at 367 (finding that “plaintiff has not demonstrated

that the Executive Order bears ‘no real or substantial relation’ to public

health”); Weisshaus v. Cuomo, No. 20 Civ. 5826 (BMC), 2021 WL 103481, at

*11 (E.D.N.Y. Jan. 11, 2021) (reaching the same conclusion with respect to

Executive Order 205.1). (See also Corbett Tr. 26:19-21 (“[G]iven the State’s

showing, it is not warranted to second-guess their informed and well-

considered public health policies.”)).

As noted above, under Jacobson, Plaintiff must demonstrate that the

Executive Order’s fourteen-day quarantine requirement bore “no real or

substantial relation” to the public health or was “a plain, palpable invasion

of rights secured by the fundamental law[.]” 197 U.S. at 31. Plaintiff has

not met this burden. First, courts — as well as much of the public — are in

agreement that COVID-19 is a highly infectious and potentially deadly

disease. See, e.g., Page, 478 F. Supp. 3d at 367 (making the same

observation); see also Columbus Ale House v. Cuomo, 495 F. Supp. 3d 88, 89

Brief (discussing modes of transmission of SARS-CoV-2, the virus that

causes COVID-19)). And the dangers of COVID-19 are further exacerbated

by the fact that individuals who are asymptomatic can transmit the virus to

others. (WHO Scientific Brief 6). Second, at the time the Executive Order

was issued, New York was “one of only a few states reported to be on track

to contain COVID-19,” whereas other states were experiencing “an increased

prevalence of COVID-19.” (See Executive Order). The quarantine

restrictions were thus enacted with the goal of curbing the transmission of

COVID-19 from residents of states who possessed “a mathematically

heightened risk of spreading COVID-19.” Page, 478 F. Supp. 3d at 370.

Third, the quarantine period of fourteen days was reasonable in light of

guidance from the WHO. In particular, the WHO determined that the

“incubation period” of COVID-19 — that is, the time between exposure to

the virus and symptom onset — was “on average 5-6 days, but [could] be as

long as 14 days.” (See WHO Scientific Brief 9). Accordingly, the Executive

Order imposed a quarantine period of fourteen days — the upper limit of the

incubation period. See Page, 478 F. Supp. 3d at 367 (discussing the

Executive Order’s rationale for the fourteen-day quarantine period).

Plaintiff has made no showing that the quarantine period bore “no real

or substantial relation” to the public health. Instead, he questions the use

of statewide data to determine a state’s “risk profile” (Pl. Opp. 12), and

alleges that other protective measures, such as mask mandates, surveys or

a social distancing “pledge,” would achieve the State’s public health goals

protective measures[,]” particularly given the medical and scientific

uncertainty inherent to any COVID-19 public health measure. Columbus

Ale House, Inc., 495 F. Supp. 3d at 93. Nonetheless, “it is not the role of the

courts to second-guess the Governor’s approach.” Id.; see also Our Wicked

Lady LLC, 2021 WL 915033, at *4 (“The setting of the appropriate limits for

the City is not up to the plaintiffs or a court — it is up to the duly elected

representatives of citizens.”).

Further, for reasons that the Court will expand upon when it turns its

focus to the claims at issue, Plaintiff has not demonstrated that the

quarantine requirement is “beyond all question, a plain, palpable invasion of

rights secured by fundamental law.” Jacobson, 197 U.S. at 31; see Page,

478 F. Supp. 3d at 367 (determining that the self-quarantine requirement

was not a “plain, palpable invasion” of plaintiff’s fundamental right to

travel).

In sum, Plaintiff’s claims must be rejected under Jacobson. However,

for completeness, the Court will address various failings in Plaintiff’s claims

under the traditional constitutional tiers of scrutiny analysis.

c. Plaintiff’s Right to Travel Claim Fails

To begin, Plaintiff asserts that the Executive Order violates his

fundamental right to “travel among the states.” (FAC ¶¶ 63-68). Under the

traditional tiers of scrutiny analysis, a law that infringes upon a

constitutionally-protected right is reviewed under the strict scrutiny

standard. See Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 100 (2d Cir.

must show that the regulation is ‘“narrowly tailored to promote a compelling

Governmental interest,’” and “must use the least restrictive means to

achieve its ends.” Evergreen Ass’n, Inc. v. City of New York, 740 F.3d 233,

246 (2d Cir. 2014) (quoting United States v. Playboy Entm’t Grp., 529 U.S.

803, 804 (2000)). In contrast, “when the right asserted is not fundamental,

courts consider whether the government action at issue is ‘rationally related

to a legitimate state interest.’” Our Wicked Lady LLC, 2021 WL 915033, at

*4 (quoting Grand River Enter. Six Nations, Ltd. v. Boughton, 988 F.3d 114,

121-22 (2d Cir. 2021)).

While the “right to travel” is not explicitly mentioned in the text of the

Constitution, it is “firmly embedded” in the Supreme Court’s jurisprudence.

See Saenz v. Roe, 526 U.S. 489, 498 (1999). The constitutional right to

travel “embraces at least three different components”:

[i] the right of a citizen of one State to enter and to leave

another State, [iii] the right to be treated as a welcome

visitor rather than an unfriendly alien when

temporarily present in the second State, and, [iii] for

those travelers who elect to be permanent residents,

the right to be treated like other citizens of that State.

Id. at 500. A law only implicates this right “‘when it actually deters such

travel, when impeding travel is its primary objective, or when it uses any

classification which serves to penalize the exercise of that right.’” Town of

Southold v. Town of E. Hampton, 477 F.3d 38, 53 (2d Cir. 2007) (quoting

Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986)).

Defendants argue that Plaintiff has not plausibly alleged that the

Br. 9).4 Courts outside this Circuit have reached different conclusions as to

whether quarantine requirements imposed in response to the COVID-19

pandemic burden the right to travel. Compare Bayley’s Campground, Inc. v.

Mills, 463 F. Supp. 3d 22, 31-35 (D. Me. 2020) (determining that Maine

executive order burdened plaintiff’s right to travel), aff’d, 985 F.3d 153 (1st

Cir. 2021), with Carmichael v. Ige, 470 F. Supp. 3d 1133, 1145-46 (D. Haw.

2020) (finding that Hawaii executive order did not violate plaintiffs’ right to

travel). In this Circuit, courts have similarly divergent views on the

implications of the Executive Order’s quarantine requirement. In Corbett,

Judge Schofield indicated that the right to travel was implicated by the

order, as it “deters some individuals from entering the state,” which in turn

“affects some of the components of the right to travel as set forth in Saenz.”

(Corbett Tr. 25:20-24). The following month, in Page, a court in the

Northern District of New York reached a different conclusion. See 478 F.

4 Plaintiff responds with arguments and allegations about the potential logistical and

financial burdens on non-residents who travel to New York and are forced to

quarantine — specifically, the difficulties of locating a hotel that would

accommodate non-residents’ quarantine, as well as the attendant expenses. (Pl.

Opp. 12). However, the Amended Complaint does not include these allegations

regarding the logistical and financial burdens of quarantining, and the Court thus

need not consider this newly-asserted argument in determining whether Plaintiff has

alleged a violation of the right to travel. See Enzo Biochem, Inc. v. Amersham PLC,

981 F. Supp. 2d 217, 223 (S.D.N.Y. 2013) (“It is well settled that a party may not

amend its pleadings in its briefing papers.”); O’Brien v. Nat’l Prop. Analysts Partners,

719 F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the complaint cannot

be amended by the brief in opposition to a motion to dismiss[.]”). Moreover,

permitting Plaintiff leave to amend his Complaint a second time to include these

allegations would be futile. See Grullon v. City of New Haven, 720 F.3d 133, 140 (2d

Cir. 2013) (“Leave to amend may properly be denied if the amendment would be

‘futile.’” (quoting Foman v. Davis, 371 U.S. 178, 182 (1962))). Plaintiff refers the

Court to no case law — and the Court is itself aware of none — indicating that the

Supp. 3d at 370. While the district court acknowledged the decision in

Corbett, it emphasized that “not everything that deters travel burdens the

fundamental right to travel,” id. (citing Matsuo v. United States, 586 F.3d

1180, 1183 (9th Cir. 2009)), and found that it was “far from clear” that the

Executive Order burdened any component of that right, id. In particular,

the court took note of the following:

Under the plain terms of the Order, individuals from

restricted states remain free to enter New York. They

must comply with the quarantine requirement after

they arrive, but that requirement is equally applicable

to a New York resident who has arrived from a

restricted state. And whether resident or non-resident,

any traveler who completes the quarantine remains

completely free to travel freely within the State itself.

In other words, the State is not drawing a distinction

between residents and non-residents but between

individuals with and without a mathematically

heightened risk of spreading COVID-19.

Id. For these reasons, the court distinguished the Executive Order from a

Maine executive order that was found to burden the right to travel because

it “effectively closed the borders of Maine ‘to any out-of-stater who does not

own or rent property’ by directing hotels, motels, and even campgrounds to

turn away all travelers who had not already completed their quarantine

within the state.” Id. (discussing Mills, 463 F. Supp. 3d at 34-35).

The Court appreciates the thoughtful analyses of the courts that have

previously confronted challenges to the Executive Order and similar

quarantine requirements. However, even assuming the Executive Order did

burden the right to travel, the Court finds that it nonetheless withstands

(finding that the Executive Order implicated the right to travel but survived

strict scrutiny review)).

Beginning with the more strenuous standard, “[s]temming the spread

of COVID-19 is unquestionably a compelling interest.” Roman Catholic

Diocese of Brooklyn, 141 S. Ct. at 67. (See also FAC ¶¶ 28, 54 (conceding

the Government’s “compelling state interest” in protecting the public

health)). And the Court finds that the Executive Order was narrowly tailored

to achieve its public health goals. As explained above, the COVID-19 virus

is highly contagious (see generally WHO Scientific Brief); individuals who are

infected with COVID-19 but present as asymptomatic may unwittingly

subject others to the risk of infection (id. at 6); and the disease has an

incubation period of up to fourteen days (id. at 9). For these reasons, at the

time the Executive Order was enacted, there was no indication that less

restrictive means would have achieved New York State’s stated interests.

Moreover, the Executive Order did not restrict individuals traveling from all

states. Rather, its quarantine requirement applied only to individuals

traveling from states where there was significant community transmission

and thus a greater likelihood that travelers would be carrying the virus.

Plaintiff alleges that less restrictive means could have accomplished

these same public health goals, including requiring all individuals entering

New York State to (i) wear a face mask; (ii) complete a contact tracing

survey; or (iii) pledge “that he or she will socially distance and only go out for

essential business.” (FAC ¶ 47). It is difficult to assess these proposed

Executive Order was enacted, in light of rising positivity rates in certain

states, concerns about the spread of the disease from asymptomatic

individuals, and the difficulties of enforcing less restrictive requirements,

such measures would not have been sufficient to achieve Defendants’ stated

interests. Cf. Our Wicked Lady LLC, 2021 WL 915033, at *5 (“A government

may pursue multiple paths to curb transmission of the virus.”).

Turning to rational basis review, the Court finds that it was rational

for Defendants to require individuals from states with high positivity rates to

quarantine for the duration of the COVID-19 virus’s incubation period.

Under rational basis review, courts consider “whether, at enactment, there

is a rational link between the harm a statute is intended to remedy and the

method by which a legislature chooses to address it.” Boughton, 988 F.3d at

123. Plaintiff cannot plausibly allege that there was no rational link

between requiring individuals from states with high rates of COVID-19

positivity tests to quarantine for the duration of the virus’s incubation

period, and reducing further spread of the disease in New York State.

The Court thus finds that the Executive Order was a calibrated

response to the COVID-19 public health crisis, and that at the time of its

issuance, there were no less restrictive alternatives that would have

achieved its significant goal — that of minimizing further mortality and

morbidity in New York State. With this in mind, the Court will consider

Plaintiff’s claims brought pursuant to the Privilege and Immunities Clause

and the Equal Protection Clause.

d. Plaintiff’s Equal Protection Claim Fails

Plaintiff next asserts that the Executive Order violates the Equal

Protection Clause of the Fourteenth Amendment. (FAC ¶¶ 69-70). The

Equal Protection Clause states that “no state shall deny to any person

within its jurisdiction the equal protection of the laws,” U.S. Const. Amend.

XIV, “which is essentially a direction that all persons similarly situated

should be treated alike[,]” City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985). An individual may assert either a “class of one” or a

“selective enforcement” equal protection claim. See generally Artec Constr. &

Dev. Corp. v. N.Y.C. Dep’t of Hous. Pres. & Dev., No. 15 Civ. 9494 (KPF),

2017 WL 782911, at *2 (S.D.N.Y. Feb. 27, 2017). Plaintiff has not clarified

which theory he is pursuing, and the Court thus will discuss the

requirements of both non-class-based equal protection claims.

Under either theory, an individual must demonstrate that he was

treated differently from other similarly-situated individuals. See Bizzarro v.

Miranda, 394 F.3d 82, 86 (2d Cir. 2005). To prevail on an equal protection

claim based on selective enforcement of the law, a plaintiff must prove that:

“‘[i] the person, compared with others similarly situated, was selectively

treated, and [ii] the selective treatment was motivated by an intention to

discriminate on the basis of impermissible considerations, such as race or

religion, to punish or inhibit the exercise of constitutional rights, or by a

malicious or bad faith intent to injure the person.’” Hu v. City of New York,

927 F.3d 81, 91 (2d Cir. 2019) (quoting Zahra v. Town of Southold, 48 F.3d

the plaintiff to differ from those of a comparator to a degree that would

justify the differential treatment on the basis of a legitimate government

policy; and [ii] the similarity in circumstances and difference in treatment

are sufficient to exclude the possibility that the defendant acted on the basis

of a mistake.” Id. at 92 (quoting Neilson v. D’Angelis, 409 F.3d 100, 105 (2d

Cir. 2005), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d

Cir. 2008)). While “class of one” claims require “an ‘extremely high’ degree of

similarity between a plaintiff and comparator,” selective enforcement claims

“merely require[] a ‘reasonably close resemblance’ between a plaintiff’s and

comparator’s circumstances.” Id. at 93.

Defendants argue that Plaintiff cannot state a claim under either

theory of equal protection, inasmuch as he has failed to allege the existence

of similarly situated comparators. (Def. Br. 10). In particular, they submit

that travelers entering New York from states that are not subject to the

quarantine requirement are not similarly situated because they are arriving

from states with “objectively lower rates of infection.” (See id.). Plaintiff

retorts that Defendants’ arguments as to whether individuals are or are not

similarly situated merely refer to the very categorizations created by the

Executive Order, and that this is “circular logic.” (Pl. Opp. 12-13). He

further questions the methodology used to determine the states subject to

the quarantine requirement. (Id.).

The Court agrees with Defendants that, at the time the Executive

Order was enacted, Plaintiff was not similarly situated to travelers from non-

himself and travelers to New York from non-restricted states. Hu, 927 F.3d

at 93.5 To the contrary, Defendants have demonstrated that these travelers

were not similarly situated, as they were arriving from states with objectively

lower rates of infection. See Lilakos v. New York City, 808 F. App’x 4, 8 (2d

Cir. 2020) (summary order) (dismissing Equal Protection Clause claim for

failure to allege facts showing the comparators are “similar in relevant

respects”). Plaintiff has thus not alleged the requisite level of similarity to

establish a “class of one” equal protection claim. Plaintiff also fails to meet

the less stringent standard for a selective enforcement claim. While Plaintiff

is plainly skeptical of the methodology employed to identify states subject to

the quarantine requirement, he nonetheless has not alleged an “intent to

discriminate” against travelers from those states. Hu, 927 F.3d at 92. (See

FAC ¶ 54 (“This lawsuit … freely grants Governor Cuomo’s good

intentions.”)).

Because Plaintiff has failed to plead facts suggesting that he has been

treated differently from others similarly situated, the Court dismisses his

equal protection claim.

e. Plaintiff’s Privileges and Immunities Claim Fails

Lastly, Plaintiff asserts a claim under the Privileges and Immunities

Clause of Article IV. (FAC ¶¶ 71-72). The Privileges and Immunities Clause

states that “[t]he Citizens of each State shall be entitled to all Privileges and

Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1.

It is understood to guarantee “‘that in any State every citizen of any other

State is to have the same privileges and immunities which the citizens of

that State enjoy.’” Schoenefeld v. Schneiderman, 821 F.3d 273, 279 (2d Cir.

2016) (quoting Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 382

(1978)). By its “plain language” the Clause “mandates a reciprocal

arrangement among the several states comprising the United States

whereby residents of one state are entitled to enjoy the same rights as

citizens of other states.” Selevan, 584 F.3d at 102.

Defendants argue that the Executive Order does not discriminate

against citizens of other states in favor of New York State residents, and that

Plaintiff has thus failed to state a claim under the Privileges and Immunities

Clause. (Def. Br. 11). In particular, they note that under the Executive

Order, a New York resident entering New York from a restricted state would

be subject to the very same quarantine requirements as residents of that

restricted state. (Id.). The district court in Page was persuaded by this

reasoning, and accordingly dismissed a similar challenge to the Executive

Order. See 478 F. Supp. 3d at 370 (observing that the quarantine

requirement was “equally applicable to a New York resident who has arrived

from a restricted state”). This Court agrees.

Plaintiff concedes that the Order “does not — on its face —

discriminate against … non-New York residents” (Pl. Opp. 13 (emphasis in

original)), but argues that it nonetheless has the effect of discriminating

against non-New York residents who are unable to quarantine in the comfort

(id.).6 Significantly, however, a plaintiff asserting a Privileges and

Immunities Clause challenge must demonstrate “that the state has

burdened nonresident activity that is ‘sufficiently basic to the livelihood of

the Nation as to fall within the purview of the Privileges and Immunities

Clause.’” See Schoenefeld, 821 F.3d at 279 (quoting Supreme Court of Va. v.

Friedman, 487 U.S. 59, 64 (1988)). If a plaintiff makes such a showing, the

state may defend its position by demonstrating that “substantial reasons

exist for the discrimination and the degree of discrimination bears a

sufficiently close relation to such reasons.” Id. (quoting Friedman, 487 U.S.

at 67). In addition, a plaintiff must “allege or offer some proof of a

protectionist purpose” to maintain a Privileges and Immunities Clause

claim. Id. at 281. “A statute enacted for … a nonprotectionist purpose is

not vulnerable to a Privileges and Immunities challenge.” Id. at 282.

Although Plaintiff asserts a Privileges and Immunities Clause claim

separate from his right to travel claim, there is little discernible daylight

between the two. Indeed, the right to travel has been “variously assigned to

the Privileges and Immunities Clause of Article IV,” among other

constitutional provisions. Soto-Lopez, 476 U.S. at 902; see also Saenz, 526

U.S. at 500-01 (holding that the right “to be treated as a welcome visitor

rather than an unfriendly alien” is “expressly protected” under the Privileges

and Immunities Clause of Article IV); Selevan, 584 F.3d at 102 (analyzing

right-to-travel claims under the Privileges and Immunities Clause of the

Fourteenth Amendment and the Privileges and Immunities Clause of Article

IV). And Plaintiff does not himself identify any distinctions between these

claims. (See FAC ¶¶ 63-68, 71-72).

Thus, for much of the same reasons discussed above, the Court finds

that even were the right to travel implicated by the Executive Order,

Defendants have provided a “substantial reason” for the difference in

treatment and demonstrated that the Executive Order bears a “sufficiently

close relation” to its objective.

What is more, Plaintiff’s Privileges and Immunities Clause claim can

be dismissed for a separate reason. Plaintiff has not alleged that the

Executive Order’s quarantine requirement was enacted with the

protectionist purpose of burdening non-residents who wish to travel to New

York. Rather, Plaintiff himself concedes that the Executive Order was

enacted with the purpose of protecting New York from further spread of the

coronavirus. (See FAC ¶¶ 28, 54). As the court in Page observed, the

Executive Order does not “draw[] a distinction between residents and non-

residents[,] but between individuals with and without a mathematically

heightened risk of spreading COVID-19.” 478 F. Supp. 3d at 370. While the

Court is sympathetic to Plaintiff’s arguments about the potential costs

associated with quarantining, the Privileges and Immunities Clause “‘does

not promise nonresidents that it will be as easy for [them] as for residents to

comply with a state’s law.’” Schoenefeld, 821 F.3d at 284-85 (holding that a

statute requiring a non-resident attorney licensed in New York to incur the

the protectionist purpose of favoring residents at the expense of

nonresidents.” Id. at 285.

In light of the Executive Order’s undisputed nonprotectionist purpose,

and given that Plaintiff has not put forth any allegations of a “protectionist

intent,” the Court finds that Plaintiff has failed to establish a violation of the

Privileges and Immunities Clause. See Schoenefeld, 821 F.3d at 282-83.

Accordingly, this claim is dismissed.

3. The Court Denies Plaintiff Leave to Replead

“Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a

court ‘should freely give leave [to amend] when justice so requires.’” Gorman

v. Covidien Sales, LLC, No. 13 Civ. 6486 (KPF), 2014 WL 7404071, at *2

(S.D.N.Y. Dec. 31, 2014) (quoting Fed. R. Civ. P. 15(a)(2)). Consistent with

this liberal amendment policy, “‘[t]he rule in this Circuit has been to allow a

party to amend its pleadings in the absence of a showing by the nonmovant

of prejudice or bad faith.’” Id. (alteration in Gorman) (quoting Block v. First

Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). That being said, “it

remains ‘proper to deny leave to replead where ... amendment would be

futile.’” Id. (quoting Hunt v. All. N. Am. Gov’t Income Tr., Inc., 159 F.3d 723,

728 (2d Cir. 1998)).

Plaintiff has sought leave to amend (see Pl. Opp. 4, 14), but the Court

concludes that any amendment would be futile. Plaintiff has previously

amended his complaint, but his Amended Complaint fails to state a claim on

which relief can be granted. Moreover, Plaintiff was put on notice of the

instead opted to oppose the motion rather than to seek leave to amend (see

Dkt. #14). Cf. Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898

F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the

deficiencies in his complaint when he first amended, he clearly has no right

to a second amendment even if the proposed second amended complaint in

fact cures the defects of the first. Simply put, a busy district court need not

allow itself to be imposed upon by the presentation of theories

seriatim.” (alteration, footnote, and internal quotation marks omitted)); Binn

v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34

(S.D.N.Y. July 13, 2020) (“To grant Plaintiffs leave to amend would be

allowing them a ‘third bite at the apple,’ which courts in this district

routinely deny.” (collecting cases)), report and recommendation

adopted, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4547167 (S.D.N.Y. Aug. 6,

2020). And as noted previously, given the legal analyses detailed in this

Opinion, the Court does not believe that Plaintiff can plead facts that would

render his claims viable. For all of these reasons, the Court will dismiss the

Amended Complaint with prejudice.

CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is

GRANTED, and Plaintiffs Amended Complaint is DISMISSED WITH

PREJUDICE. The Clerk of Court is directed to terminate all pending

motions, adjourn all remaining dates, and close this case.

SO ORDERED.

Dated New York, New York Kathe fall fi ida

KATHERINE POLK FAILLA

United States District Judge