GOTTSHALL-WRIGHT v. STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

WRIGHT-GOTTSHALL et al.,

Civil Action No.

Plaintiffs, 3:21-cv-18954-PGS-DEA

MEMORANDUM

STATE OF NEW JERSEY, et al.,

Defendants.

Twenty-three plaintiffs commenced this action against the State of New

Jersey, Governor Philip Murphy (in his official and personal capacity), the New

Jersey Supreme Court, Chief Justice Stuart Rabner (in his official and personal

capacity), Glenn A. Grant, J.A.D. (in his official and personal capacity) and the

New Jersey Office of Legislative Services (collectively, “Defendants”). Plaintiffs

are government employees or contractors who chose not to be vaccinated against

COVID-19 and therefore, were required to comply with the COVID-19 testing

mandates put in place by the Executive, Legislative and Judiciary branches of the

New Jersey State government. By way of this action, Plaintiffs seek declaratory

and injunctive relief and damages arising out of alleged violations of their

constitutional rights in connection with the testing mandates. Specifically,

Plaintiffs asserts violations of their First Amendment right to free exercise of

]

religion, Fourth Amendment right to be free from unreasonable search and seizure,

Fourteenth Amendment rights to liberty and privacy and the Equal Protection

Clause, and rights under the New Jersey State Constitution. They also assert

violations of 42 U.S.C. § 1983. Each plaintiff submitted a sworn declaration setting

forth the reasons why the mandate applicable to him or her imposed a hardship or

inconvenience and violated his or her constitutional rights. (ECF Nos. 34-9 — 34-

32).

On January 18, 2022, Defendants moved to dismiss the Complaint pursuant

to Fed. R. Civ. P. 12(b)(1) and (6). (ECF No. 10). While that motion remained

pending, on August 5, 2022, Plaintiffs filed a Motion for a Temporary Restraining

Order and/or Preliminary Injunction, which sought to enjoin Defendants from

enforcing the testing mandates. (ECF No. 19). Following the termination of all

three mandates, on August 29, 2022, Plaintiffs withdrew their motion. (ECF No.

29).

In addition, while Defendants’ Motion to Dismiss remained pending,

Plaintiffs moved for leave to file an amended complaint pursuant to Fed. R. Civ. P.

15(a)(2). (ECF No. 27). The proposed amendments sought to hold Governor

Murphy, Chief Justice Rabner and Administrative Director Grant (the “Individual

Defendants”) liable in their personal capacity and seek damages against

Defendants because “most Plaintiffs had not been damaged when the Complaint

was originally filed so damages could not have been plead [sic] at that time.” (ECF

No. 27 at 3). The Court granted Plaintiffs’ Motion for Leave and simultaneously

terminated Defendants’ Motion to Dismiss without prejudice. (ECF No. 33). On

September 23, 2022, Plaintiffs filed an Amended Complaint, which seeks relief in

the form of consequential, emotional and punitive damages. (ECF No. 34).

Thereafter, Defendants filed a Motion to Dismiss the Amended Complaint

pursuant to Rule 12(b)(1) and (6), which is presently before the Court. (ECF No.

36). For the reasons set forth below, the Court will grant Defendants’ Motion to

Dismiss.

I.

A. The Executive Mandate

In response to the public health emergency caused by the COVID-19

pandemic, on August 23, 2021, Governor Murphy issued Executive Order 253

(“EO 253”). (Am. Compl. ¥ 14; ECF No. 34-1). EO 253 mandated that “[a]]l

public, private and parochial preschool programs and elementary and secondary

schools, including charter and renaissance schools (“covered settings”) .. .

maintain a policy that requires all covered workers to either provide adequate proof

to the covered setting that they have been fully vaccinated or submit to COVID-19

testing at minimum one to two times weekly.” (Am. Compl. §ff 15-16; ECF No.

34-1). To satisfy the testing requirement, EO 253 mandated a covered worker

undergo testing one to two times per week on an ongoing basis until fully

vaccinated. (Am. Compl. 16-17; ECF No. 34-1). “Covered workers” included

“all individuals employed by the covered setting, both full- and part-time.” (Am.

Compl. { 18; ECF No. 34-1). EO 253 went into effect on October 18, 2021. (ECF

No. 34-1).

Subsequently, on August 15, 2022, Governor Murphy issued Executive

Order 302 (“EO 302”), which rescinded EO 253 effective immediately.! (ECF No.

36-2, Ex. 5). The reasons cited in EO 302 for the recission of EO 253 included the

administration of over 18.4 million doses of the COVID-19 vaccine in the State,

“stable rates on key benchmark statistics, such as the number of hospitalized

patients, patients in intensive care, and ventilators in use, and the spot positivity of

COVID-19 tests.” (Id.). In addition, EO 302 cited guidance from the Centers for

Disease Control and Prevention (“CDC”) issued on August 11, 2022 that

recognized “high levels of vaccine and infection-induced immunity and the

availability of effective treatments and prevention tools [that] have substantially

reduced the risk for medically significant COVID-19 illness, and associated

hospitalization and death.” (/d.). EO 302 further states “in light of the CDC’s

updated guidance, and given the progress the State has made, the State can begin to

' Plaintiffs make no mention of EO 302 in their Amended Complaint, however, the Court

considers it as an undisputedly authentic document attached to Defendants’ motion. See Pension

Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

responsibly lift certain mitigation protocols in place. As a result of EO 302, the

requirement that unvaccinated covered workers submit to weekly or twice weekly

testing was effectively terminated. —

B. The Judiciary Mandate

On August 6, 2021 and August 11, 2021, Chief Justice Stuart Rabner and

Administrative Director Glenn A. Grant sent a broadcast message announcing the

New Jersey Judiciary’s COVID-19 vaccination and testing policy. (Am. Compl.

30, 36; ECF Nos. 34-2, 34-7). A memorandum from Administrative Director Grant

dated August 11, 2021 set forth further details of the Judiciary’s policy. (Am.

Compl. { 39; ECF No. 34-8). Citing worsening COVID-19 trends, including the

spread of the Delta variant, and the need to prevent further illness and death, the

policy required all judiciary staff and state court judges to provide proof of full

COVID-19 vaccination status or the results of a weekly COVID-19 test. (Am.

Comp]. {fj 30, 38; ECF Nos. 34-2, 34-7, 34-8). Those who chose to undergo

weekly COVID-19 tests were required to do so from Saturday morning through

Wednesday night each week at an approved testing facility and submit the results

of the test electronically on an online portal maintained by the Judiciary no later

than 11:00 a.m. on the Friday following the test. (ECF No. 34-8). Testing

conducted during work hours required employees to use sick leave or request the

use of vacation and/or administrative leave. (Id).

Employees who did not submit a negative test result by 11:00 a.m. on Friday

were excluded from the work location on the next scheduled on-site workday and

could be excluded for up to 24 hours after submission of a negative result. (/d.).

Excluded employees were required to use administrative, sick or vacation time if

remote work was not supported. (/d.). Upon exhaustion of available leave, the

absence was considered unauthorized and unpaid. (/d.).

The policy took effect on August 20, 2021. (Id.). Effective September 1,

2022, the policy was terminated based on updated guidance from the CDC. (ECF

No. 36-2, Ex. 4).

C. The Legislative Mandate

On September 20, 2021, Christin Knox, Director of Human Resources for

the New Jersey Office of Legislative Services (“NJOLS”) sent an email to

employees detailing NJOLS’s COVID-19 vaccination and testing policy. (ECF No.

36-2, Ex. 3). Effective October 25, 2021, the policy required employees to provide

proof of vaccination or undergo weekly COVID-19 PCR testing. (Id.).

Unvaccinated employees were required to test three days prior to submitting

results, which were due each Monday by 10:00 a.m. (/d.). Failure to submit test

results on time required employees to use accumulated leave time. (/d.). If

accumulated leave was exhausted, leave was unpaid. (Id.).

6 .

By email dated August 22, 2022, NJOLS announced that the COVID-19

testing policy would be lifted effective September 1, 2022. (ECF No. 36-2, Ex. 6).

The reasons for the termination of the NJOLS policy were not citedtherein,

however, the email notes that NJOLS “will continue to follow CDC guidelines on

isolation, quarantine and exposure.” (/d.). In their moving brief, Defendants assert

that the termination of the policies by all three branches of government was “due to

the State’s consistent application of the CDC’s recommendations through

common-sense public health interventions—including the vaccination and testing

policies ....” (ECF No. 36-1 at 19).

Il.

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) challenges a federal

court’s subject matter jurisdiction. In deciding a Rule 12(b)(1) motion, the court

must first determine “whether [it] presents a facial attack or a factual attack on the

claim at issue, because that distinction determines how the pleading must be

reviewed.” Const. Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir.

2014) (internal quotation marks and citation omitted). A factual attack challenges

the factual allegations underlying the complaint’s assertion of jurisdiction. See

Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A

facial attack challenges the sufficiency of the claim, and therefore, “the court must

only consider the allegations of the complaint and documents referenced therein

and attached thereto, in the light most favorable to the plaintiff.” See Aichele, 757

F.3d at 358 (internal quotation marks and citation omitted). In that regard, a facial

motion is handled like a Rule 12(b)(6) motion. See Leadbeater v. JP Morgan

Chase, N.A, No. CV 16-7655 (JMV), 2017 WL 4790384, at *3 (D.N.J. Oct. 24,

2017). Here, Defendants assert the defense of immunity thereby raising a facial

attack. See Long v. Barrett, No. 2:17-CV-5741-KM-SCM, 2018 WL 1617702, at

*3 (D.N.J. Apr. 3, 2018) (construing motion to dismiss based on sovereign

immunity and qualified immunity as a facial challenge to the court’s jurisdiction).

Therefore, the facts alleged in the Amended Complaint are accepted as true.

Typically, on a Rule !2(b)(1) motion, the burden is on the plaintiff to

demonstrate the existence of subject matter jurisdiction. See Davis v. Wells Fargo,

824 F.3d 333, 349 (3d Cir. 2016). However, because immunity is treated as an

affirmative defense, the party asserting it bears the burden of proving its

applicability. See Garcia v. Knapp, No. 19-17946, 2020 WL 2786930, at *3

(D.N.J. May 29, 2020); Steele v. Cicchi, No. CIV.A. 09-3551 MLC, 2014 WL

2168126, at *2 (D.N.J. May 23, 2014).

To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Igbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

USS. 544, 570, 127 8. Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). A complaint does

not need detailed factual allegations. See Twombly, 550 U.S. at 555, 127 S. Ct. at

1964. However, the plaintiff's “obligation to provide the grounds of his entitlement

to relief requires more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Jd. at 555-56, 127 S. Ct. 1955

(internal quotation marks, brackets and citation omitted). A court is “not bound to

accept as true a legal conclusion couched as a factual allegation.” Papasan v.

Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944, 92 L. Ed. 2d 209 (1986)

(citations omitted). Rather, the “[flactual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at

1965. Courts may reference “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on

the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993) (citations omitted). “Although immunity is an

affirmative defense, a complaint may be subject to dismissal under Rule 12(b)(6)

when an affirmative defense appears on its face.” Leveto v. Lapina, 258 F.3d 156,

161 Gd Cir. 2001) (internal quotation marks and citation omitted).

III.

As a threshold matter, Plaintiffs’ claims for injunctive and declaratory relief

are moot. Article III, Section 2 of the Constitution limits the jurisdiction of federal

courts to cases and controversies. U.S. Const. art. III, § 2, cl. 1. “[A]n actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10, 94 S. Ct. 1209,

1216, 39 L.Ed.2d 505 (1974) (citations omitted). Cases or claims for relief are

moot when “the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89

S. Ct. 1944, 23 L.Ed.2d 491 (1969) (citation omitted). In other words, “[i]f it is

impossible . . . to grant ‘any effectual relief whatever to the prevailing party,’ then

the case is moot.” Clark v. Governor of New Jersey, 53 F.4th 769, 775 (3d Cir.

2022) (quoting Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161, 136 S. Ct. 663,

193 L. Ed.2d 571 (2016)). In light of the recission of the Executive, Legislative

and Judiciary Mandates, the Court cannot effectually provide any declaratory or

injunctive relief to Plaintiffs.

While Plaintiffs do not dispute that the testing mandates are no longer in

effect, they contend that their claims are justiciable because the voluntary cessation

doctrine applies. (ECF No. 40 at 50). Under the voluntary cessation doctrine, “a

defendant’s voluntary cessation of a challenged practice does not deprive a federal

court of its power to determine the legality of the practice.” Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708,

145 L. Ed. 2d 610 (2000) (internal quotaticn marks and citation omitted). The focal

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point of the inquiry is “whether the defendant made that change unilaterally and so

may return to its old ways later on.” Hartnett v. Pennsylvania State Educ. Ass’n,

963 F.3d 301, 307 (3d Cir. 2020) (internal quotation marks, citation and brackets

omitted). Defendants, as the party asserting mootness, bear a “heavy burden”

because “it must be ‘absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.’” Clark, 53 F.4th at 775 (quoting Fields v.

Speaker of the Pa. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019)).

It is absolutely clear to the Court that there is no reasonable likelihood that a

legal controversy substantially similar to the one at issue here will occur again. The

Third Circuit’s opinion in Clark v. Governor of New Jersey, 53 F.4th 769 (3d Cir.

2022) guides the Court’s analysis. There, the Court reviewed a challenge to

executive orders issued by Governor Murphy that restricted indoor gatherings for

religious worship in response to the COVID-19 pandemic. /d. at 771. Although the

executive orders had been rescinded, Plaintiff-Appellants asserted that the

voluntary cessation doctrine applied. See id. at 772, 776. The district court

dismissed the case as moot, and the Third Circuit affirmed. Jd. at 774-75. The

Third Court’s analysis comprised two parts: “(1) whether the same precise

situation” — namely the COVID-19 pandemic ~ will recur; and “(2) whether the

Governor will respond to that situation by imposing restrictions similar enough to

those he imposed in 2020 and 2021, such that it presents substantially the same

© 1d

legal controversy as the one presented here.” Jd. at 777-78 (internal quotation

marks and citation omitted). Several reasons — including enhanced medical

knowledge and development to combat the virus and the State’s track record in

declining to reimpose similar restrictions when COVID-19 cases surged — led the

Court to find it implausible that a challenge to another COVID-based gathering

restriction would amount to the “same legal controversy” as the one before the

Court. See id. at 778-81 (emphasis in original).

The Third Circuit’s reasoning applies with equal force here. To this Court, it

is absolutely clear that (1) a global crisis of the same magnitude as the COVID-19

pandemic and (2) testing mandates akin to those imposed by the State are not

reasonably likely to recur. As the Clark Court noted, “[o]ur knowledge of the virus

and its vectors of transmission, the rollout of vaccines, and the availability of

therapeutic responses to infection have totally changed the nature of the disease

itself, our understanding of it, and our response to it.” Id. at 778. Indeed, the

termination of the testing mandates occurred in response to those developments

and CDC guidance that recognized an overall improvement in circumstances

surrounding the pandemic. Accordingly, the voluntary cessation doctrine does not

revive the mooted claims.

The Court’s decision conforms with that of several courts in this circuit that

have dealt with similar cases against states and state actors sued in connection with

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COVID-related orders that ultimately were rescinded or had expired. See, e.g.,

Johnson v. Governor of New Jersey, No. 21-1795, 2022 WL 767035, at *3 (3d Cir.

2022) (challenge to expired executive order, which allowed security deposits to be

applied to rent payment during the COVID-19 pandemic, was moot); Cnty. of

Butler v. Governor of Pennsylvania, 8 F 4th 226, 230 (3d Cir. 2021), cert. denied

sub nom. Butler Cnty., Pennsylvania v. Wolf, 211 L. Ed. 2d 482, 142 S. Ct. 772

(2022) (challenge to expired stay-at-home orders, business closure orders, and

orders setting congregation limits in secular settings enacted in response to

COVID-190 was moot); Parker v. Governor of Pennsylvania, No. 20-3518, 2021

WL 5492803, at *4 (3d Cir. Nov. 23, 2021) (voluntary cessation exception did not

apply to mooted challenge of statewide mask mandate that expired by its own

terms); Livesay v. Murphy, No. CV2017947ZNQTIB, 2022 WL 4597435, at *4

(D.N.J. Sept. 30, 2022) (challenge to executive orders that mandated masking,

social distancing and virtual learning became moot because the orders had been

rescinded); Behar v. Murphy, No. CV 20-05206 (FLW), 2020 WL 6375707, at *3

(D.N.J. Oct. 30, 2020) (challenge to stay-at-home order mooted by the recission of

the order).?

* Plaintiffs attempt to distinguish the case at hand on the basis that the mandates at issue did not

expire by their own terms. The Court rejects this argument. There is no evidence that the testing

mandates were terminated in response to litigation or to evade judicial review. See, e.g., Johnson,

2022 WL 767035, at *3; Cnty. of Butler, 8 F 4th at 230 (“It is conceivable that the expiration of

the executive orders could be opportunistically timed to avoid an unfavorable adjudication, but

we have no basis to conclude that has happened here.”). Moreover, the Court presumes that

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The dismissal of the declaratory and injunctive relief claims leaves

Plaintiffs’ claim for damages. The Court will address the claims against the state

entities and the state officers in turn.

IV.

Eleventh Amendment sovereign immunity is rooted in this Nation’s

founding. It is based on the presupposition that “each State is a sovereign entity in

our federal system; and... . it is inherent in the nature of sovereignty not to be

amenable to the suit of an individual without its consent.” Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 54, 116 S. Ct. 1114, 1122, 134 L. Ed. 2d 252 (1996) (internal

quotation marks, brackets and citations omitted). As a general rule, “an

unconsenting State is immune from suits brought in federal courts by her own

citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651,

668, 94 S. Ct. 1347, 1356, 39 L. Ed. 2d 662 (1974); (citing Hans v. Louisiana, 134

US. 1, 10S. Ct. 504, 33 L. Ed. 842 (1890)). Immunity under the Eleventh

Amendment also extends to an “arm or instrumentality of the state,” which enjoys

the same protection as the sovereign itself. Lewis v. Clarke, 581 U.S. 155, 162, 137

S. Ct. 1285, 1290, 197 L. Ed. 2d 631 (2017). This is the case because in an action

that seeks to recover money from the state, “the state is the real, substantial party in

government entities and officials act in good faith in performing their duties. See Parker, No. 20-

3518, 2021 WL 5492803, at *4.

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interest and is entitled to invoke its sovereign immunity from suit... .” Edelman,

415 US. at 663, 94S. Ct. at 1356, 39 L.Ed.2d 662 (internal quotation marks and

citation omitted).

Sovereign immunity is subject to three exceptions under which a suit against

a state may proceed: “(1) congressional abrogation; (2) state waiver; and (3) suits

against individual state officers for prospective relief to end ongoing violations of

federal law.” L. Offs. of Lucas ex rel. Lucas v. Disciplinary Bd. of Supreme Ct. of

PA, 128 F. App’x 235, 237 (3d Cir. 2005) (citation omitted). The third exception

refers to the Ex Parte Young doctrine. Ex parte Young, 209 U.S. 123, 155-56, 159-

160, 28 S. Ct. 441, 52 L.Ed. 714 (1908).

Without any doubt, the State of New Jersey, the New Jersey Supreme Court

and the New Jersey Office of Legislative Services are immune from suit. First, the

State has neither consented to suit nor waived its Eleventh Amendment immunity.

See Thorpe v. New Jersey, 246 F. App’x 86, 87 (3d Cir. 2007). Second, the New

Jersey Supreme Court is an arm of the State. See, e.g., Ehrlich v. Alvarez, No. 21-

2342, 2022 WL 1487021, at *2 (3d Cir. May 11, 2022) (“The various courts,

established by the New Jersey Constitution in a unified state-based court system . .

. are also entitled to immunity under the Eleventh Amendment as ‘arms’ of the

state.”); Dongon v. Banar, 363 F. App’x 153, 156 (3d Cir. 2010) (“[T]he state

courts, its employees, and the judges are entitled to Eleventh Amendment

15 □

immunity because they are part of the judicial branch of the State of New Jersey,

and therefore considered arms of the state.”). Lastly, the same holds true for

NJOLS, which is “established in the Legislative Branch of the State Government,

to aid and assist the Legislature in performing its functions.” N.J.S.A. 52:11-55.

NJOLS’s duty is to “[p]rovide ... legal, fiscal, research, information and

administrative services and assistance for the Legislature, its officers, committees,

commissions, members and staff.” N.J.S.A. 52:11-58 (emphasis added). Any

recovery against the state court or NJOLS would, in essence, be funded by the

State. In the absence of a waiver or a valid congressional override, sovereign

immunity deprives the Court of federal subject matter jurisdiction. Accordingly,

the State of New Jersey, the New Jersey Supreme Court and the New Jersey Office

of Legislative Services must be dismissed.

Further, Governor Murphy, Chief Justice Rabner and Administrative

Director Grant are immune from suit for damages in their official capacities.

Because “a suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office... it is no

different from a suit against the State itself.” Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) (citations

omitted); see Durham v. Dep’t of Corr., 173 F. App’x 154, 156 (3d Cir. 2006)

(affirming dismissal of claims against individual corrections officers sued in their

16

official capacities). Likewise, Plaintiffs’ section 1983 claim, which appears to be

made only against the Individual Defendants, must also be dismissed. “[N]either a

State nor its officials acting in their official capacities are ‘persons’ under § 1983.”

Will, 491 U.S. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d 45. The claims against the

Individual Defendants in their official capacity will also be dismissed.

Plaintiffs assert two exceptions to sovereign immunity apply. First, Plaintiffs

contend, in a conclusory manner, that the “individual defendants cannot claim

sovereign immunity under Ex parte Young.” (ECF No. 40 at 49). In Ex parte

Young, the Supreme Court carved out a limited exception to sovereign immunity

and held that “a state official is stripped of his official or representative character

and thereby deprived of the State’s immunity . . . when he commits an ongoing

violation of federal iaw.” Waterfront Comm’n of New York Harbor v. Governor of

New Jersey, 961 F.3d 234, 238 (3d Cir. 2020) (internal quotation marks and

citations omitted). Where a state official commits an “ongoing violation of federal

law,” a private plaintiff may sue the state official in his or her official capacity. Id.

at 238. Importantly, Ex parte Young “has been narrowly construed” and “applies

only to the precise situation of a federal court commanding a state official to do

nothing more than refrain from violating federal law.” Waterfront Comm’n, 961

F.3d at 238 (internal quotation marks and citation omitted); see Williams ex rel.

. 17

Bookbinder v. Connolly, 734 F. App’x 813, 816 (3d Cir. 2018) (affirming dismissal

of complaint that sought retroactive relief against the State).

Plaintiffs do not contest that the COVID-19 testing policies issued by the

Executive, Legislative and Judiciary branches of government have been rescinded

or terminated. Indeed, they acknowledged this very fact in the withdrawal of their

Motion for a Temporary Restraining Order. (ECF No. 30). In light of the recission

of the mandates, there is no ongoing violation of federal law, and Ex parte Young

does not apply.

In another blanket statement, Plaintiffs cite PennEast Pipeline Co. v. New

Jersey, — U.S. ——, 141 S. Ct. 2244, 210 L. Ed.2d 624 (2021) to assert that “the

state has agreed to suit in the plan of the convention.” (ECF No. 40 at 49). In that

case, PennEast sought to exercise its federal eminent domain power under the

Natural Gas Act, 15 U.S.C. § 717f(h), to condemn state-owned property for the

construction of an interstate gas pipeline. /d. at 2253. The district court denied the

state’s motion to dismiss on sovereign immunity grounds and granted a

condemnation order. /d..On appeal, the Third Circuit vacated and remanded the

case for dismissal because it concluded that § 717f(h) did not clearly delegate to

certificate holders authorized with the federal eminent domain power the right to

file condemnation actions against nonconsenting states. Jd. at 2254, The Supreme

Court granted certiorari and reversed. Jd. at 2263. A nonconsenting state “may be

18

sued if it has agreed to suit in the ‘plan of the Convention,’ which is shorthand for

the structure of the original Constitution itself.” Jd. at 2258. Notably, the Court

explained that “[t]he plan of the Convention contemplated that States’ eminent

domain power would yield to that of the Federal Government ‘so far as is

necessary to the enjoyment of the powers conferred upon it by the Constitution.””

Id. at 2259 (quoting Kohl v. United States, 91 U.S. 367, 372, 23 L. Ed. 449

(1875)). A condemnation action by a party equipped with the power of federal

eminent domain “falls comfortably within the class of suits to which States

consented under the plan of the Convention.” Jd. The Court has recognized waivers

of sovereign immunity under the plan of the Convention in bankruptcy

proceedings, suits by other states and suits by the Federal Government. Je. at 2258

(citing cases). This case, which involves government-ordered medical testing

prompted by a public health emergency and unprecedented pandemic, does not

even remotely fall within any recognized class of suits to which States consented

under the plan of the Convention.

‘As none of the exceptions to sovereign immunity apply, the Court will

dismiss the claims for damages against the State of New Jersey, the New Jersey

Supreme Court, the New Jersey Office of Legislative Services, Governor Murphy,

Chief Justice Rabner and Administrative Director Grant in their official capacity.

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Thus, the only remaining issue is Plaintiffs’ damages claim against the Individual

Defendants in their personal capacity.

Vv.

Under the doctrine of qualified immunity, “government officials performing

discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)

(citations omitted); Pearson v. Callahan, 555 U.S. 223, 244, 129 S. Ct. 808, 823,

172 L. Ed. 2d 565 (2009). Qualified immunity protects a state official “regardless

of whether the government official’s error is ‘a mistake of law, a mistake of fact, or

a mistake based on mixed questions of law and fact.’” Pearson, 555 U.S. at 231

(quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S. Ct. 1284, 157 L. Ed.2d 1068

(2004)). While state officials may “execute their duties without the constant threat

of litigation, it is ‘no license to lawless conduct.’” Peroza-Benitez v. Smith, 994

F.3d 157, 164 (3d Cir. 2021) (quoting Harlow, 457 U.S. at 819, 102 S. Ct. 2727,

73 L.Ed.2d 396)). “The standard for qualified immunity is tilted in favor of

shielding government actors and ‘gives ample room for mistaken judgments by

protecting all but the plainly incompetent or those who knowingly violate the

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law.”” Zaloga v. Borough of Moosic, 841 F.3d 170, 175 (3d Cir. 2016) (quoting

Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 116 L. Ed.2d 589 (1991)).

Courts conduct a two-step inquiry to address qualified immunity claims.

Pearson, 555 U.S. at 232; Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150

L. Ed.2d 272 (2001). First, the court must determine “whether the facts that.a

plaintiff has alleged .. . or shown. . . make out a violation of a constitutional

right.” Pearson, 555 U.S. at 232. Second, the court must determine “whether the

right at issue was ‘clearly established’ at the time of defendant’s alleged

misconduct.” /d. A right is clearly established when it is “sufficiently clear that

every reasonable official would have understood that what he is doing violates that

right.” Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 2093, 182 L. Ed.

2d 985 (2012) (internal quotation marks, citations, and brackets omitted). “[T]he

right allegedly violated must be established, not as a broad general proposition, . . .

but in a particularized sense so that the contours of the right are clear to a

reasonable official.” Jd. at 665 (internal quotation marks and citations omitted); see

also Zaloga, 841 F.3d at 175 (“[T]he right should be framed in terms specific

enough to put ‘every reasonable official’ on notice of it... .”).

Courts may “exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S. Ct.

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at 818. As the Supreme Court noted, judicial resources may be conserved by __

bypassing the first step because “[i]n some cases, a discussion of why the relevant

facts do not violate clearly established law may make it apparent that in fact the

relevant facts do not make out a constitutional violation at all.” /d. “[U]nless the

plaintiff's allegations state a claim of violation of clearly established law, a

defendant pleading qualified immunity is entitled to dismissal before the

commencement of discovery.” Oliver v. Roquet, 858 F.3d 180, 188 (3d Cir. 2017)

(internal quotation marks and citation omitted).

The Court’s begins its analysis with the second factor of the Saucier

framework — whether a right was clearly established. “The contours of the right

must be sufficiently clear that a reasonable official would understand that what he

is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.

3034, 3039, 97 L. Ed. 2d 523 (1987). Courts “typically look to Supreme Court

precedent or a consensus in the Courts of Appeals to give an officer fair warning

that his conduct would be unconstitutional.” Kedra v. Schroeter, 876 F.3d 424, 450

(3d Cir. 2017). Plaintiffs assert violations of their constitutional rights under the

First, Fourth and Fourteenth Amendments and the New J ersey State Constitution,

however, the Court is not persuaded that the contours of these rights are

sufficiently particular to the circumstances at hand such that a reasonable officer

understood what he or she did violated those rights. The particular right at issue —

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the right to be free from government-mandated workplace testing of an infectious

disease — has never been recognized, let alone addressed by courts. The testing

mandates were implemented in the throes of a rare, once-in-a-century-global health

crisis for which guidance has constantly evolved. It follows then that it was not

sufficiently clear to a reasonable official that what he or she was doing violated

that right.

Because the clearly established standard has not been satisfied, the Court

need not decide whether the alleged facts make out a violation of a constitutional

See Zaloga, 841 F.3d at 174 (declining to conduct any analysis on the first

prong where the second prong was not met). Proceeding to address the first

Saucier factor would be an “academic exercise.” Pearson, 555 U.S. at 237. As

such, Governor Murphy, Chief Justice Rabner and Administrative Director Grant

are entitled to qualified immunity from the claims made against them in their

personal capacity.

3 Even if the Court were to reach that issue here, it has long been recognized that some

“restraints” on liberties secured by the Constitution may be necessary for the common good.

Jacobson v. Massachusetts, 197 U.S. 11, 26, 25 S. Ct. 358, 49 L. Ed. 643 (1905) (upholding

state’s compulsory vaccination law enacted during the smallnox epidemic to protect the public

health and safety). Jacobson has been relied upon by several courts that have upheld the

constitutionality of COVID-related restrictions. See Smith y. Biden, No. 1:21-CV-19457, 2021

WL 5195688, at *6 (D.N.J. Nov. 8, 2021).

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VI.

For the reasons stated above, Defendants’ Motion to Dismiss is granted with

prejudice. Based on the grounds for dismissal, any amendment to the complaint

would be futile. An appropriate Order follows.

Pehha

PETER G. SHERIDAN, U.S.D.J.

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