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

> District Court, S.D. New York · June 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10332544

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10332544. Public record. Not legal advice.