United States of America, United States District Court for the Eastern District of New York, 13 May 2022, No. 21-CV-4553 (ARR) (TAM)
Case overview
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Deciding body (English)
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Type of Court (territorial scope)
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Outcome of the decision
General Summary
Plaintiffs are citizens of New York City and have challenged the constitutionality of the “Key to NYC” program, an executive order issued in May 2021 by the Mayor of New York, which required the showing of proof of vaccination to enter entertainment, recreational, food, and fitness facilities. Plaintiffs have claimed that it violates both the Supremacy Clause and their individual rights under the First, Fourth, Fifth, and Fourteenth Amendments. Defendants have moved to dismiss the complaint and the Court has granted motion.
Facts of the case
On August 16, 2021, in response to the ongoing COVID-19 pandemic, Bill de Blasio, who was the Mayor of New York City, issued Emergency Executive Order (EEO) Number 225. This Order instituted a program known as “Key to NYC,” which was meant to help reduce the transmission of COVID-19 and incentivize people to get the COVID-19 vaccine. Key to NYC prohibited most people from entering indoor entertainment, recreation, food, and fitness facilities without showing proof of vaccination against COVID-19. Entities that operated facilities covered by the Key to NYC program were required to check the vaccination status of individuals who entered their facilities, including patrons, contractors, and employees. Several of the main provisions of Key to NYC expired on March 7, 2022, pursuant to Emergency Executive Order Number 50. Though the subsequent orders differed in some ways from EEO 225, the basic provisions at issue in this case—the requirement that people show proof of vaccination when entering indoor establishments and the mandate that businesses enforce this requirement—remained largely consistent. Plaintiffs in this case are residents of New York City who take issue with the Key to NYC program. L.R. owns and operates “a public relations and marketing company” and has clients who own restaurants and bars. L.R. reports that she “experienced a drastic decline [in business] due to” Key to NYC. Ms. R. also objects to receiving a COVID-19 vaccine and to “disclos[ing] any sensitive medical information to anyone outside of her healthcare provider or insurance company.” S.N. owns two fitness centers in New York City and saw “a precipitous loss of business from canceled memberships based on” the Key to NYC program. Ms. N. has also “had to divert employees from doing other regularly scheduled tasks to checking for vaccination status” and has faced “a loss of employees due to the vaccination status [of] her employees.” R.S. owns a dining establishment that was “directly impacted by” the Key to NYC program. She “received numerous reservation cancelations for indoor dining and events based on” the program and was “faced with having to terminate employees who do not furnish proof of vaccination.”
In addition, Ms. S. “objects” to having to inspect customers’ vaccine information and to providing this information herself “to gain access to places of public accommodation.” T.F. “owns a beverage distribution company and objects to having to furnish proof of vaccination in order to visit her customers or conduct basic transactions in the City of New York.” “As a result,” she explains, her business has “suffer[ed] detrimental financial effects.” J.F., W.P., and A.H. sue on the basis that they “object[]” to having to provide their vaccination information to entities covered by the Key to NYC program. Ms. F. adds that, while the original version of Key to NYC was in effect, she “w[as] unable to enjoy life in New York City because [she] w[ould] not furnish her vaccine status to anyone outside of her healthcare provider or insurance plan.” Mr. P., meanwhile, asserts that he was “placed at a disadvantage” in his campaign for mayor because “he [was] barred from entering establishments in the City of New York in order to attend meetings and events.” Finally, C.A., C.M., and A.Y. all “object to having to having to disclose their vaccination status to anyone who is not a licensed medical professional.” They claim “[t]hey [we]re precluded from business opportunities and job opportunities because of” the Key to NYC program.
Type of measure challenged
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Individual / collective enforcement
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Private collectiveDefendant(s)
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Reasoning of the deciding body
The Court has analyzed the arguments of the Plaintiffs and Defendants and has reasoned that:
- Plaintiffs have sought an order enjoining the Defendants from enforcing the Key to NYC program. When Plaintiffs filed the suit, the Key to NYC program included a provision requiring covered entities to check the vaccination status of patrons who entered their facilities, and many of Plaintiffs’ claims target this rule specifically, alleging that it violated their constitutional rights as patrons or would-be patrons. At the time of the decisions, however, the rule was no longer in effect—though a modified version of Key to NYC remained, it did not apply to patrons. Therefore, the Court found that it could not enjoin what no longer existed and because the patron-specific rule had expired, the claims Plaintiffs brought in their capacity as patrons were found moot.
- Plaintiffs’ Fifth Amendment claim alleged that they had been harmed by Key to NYC because its requirements force them to take on expenses, they would not have otherwise, including the costs of assigning an employee to check people’s vaccination status and of terminating valuable employees who have refused to be vaccinated. The Court has argued that this claim rests on the financial injuries Plaintiffs have experienced as business owners, under the Fourth Amendment, the Fourteenth Amendment, and the Supremacy Clause. The Court argues that those provisions posed a more direct, personal theory of harm. To have standing for their Fourth Amendment, Fourteenth Amendment, and Supremacy Clause claims, Plaintiffs must have been personally injured by Key to NYC’s requirement that business owners who interact with the public retain proof that they had been vaccinated—for example, by being asked to show proof of vaccination or by being fined for refusing to do so. The complaint, however, did not present such allegations, and Plaintiffs have claimed only that they “object” to being vaccinated or to providing proof of vaccination. Because Plaintiffs did not established a concrete, particularized injury, The Court found that they did not have standing to bring their claims.
- Plaintiffs also alleged that Key to NYC amounts to an unconstitutional taking, in violation of the Fifth Amendment. Defendants moved to dismiss this claim, and to survive Defendants’ motion, Plaintiffs must state “enough facts to state a claim to relief that is plausible on its face.”
- The only allegations Plaintiffs made about the economic impact of the remaining Key to NYC provisions on their businesses were that they have “had to divert employees from doing other regularly scheduled tasks to checking for vaccination status” and that they were “facing a loss of employees due to [the employees’] vaccination status.” Though these allegations have shown that Plaintiffs experienced some economic impact from Key to NYC, the impact is significant: under the revised version of Key to NYC, business owners had to keep vaccination records for their employees but did not need to regularly “divert” employees to check the vaccination status of patrons and visitors, and there was no claim that any employees who refused to provide proof of vaccination were irreplaceable or central to the financial success of Plaintiffs’ businesses. Furthermore, Plaintiffs operated and worked with entities that were ordinarily subject to a panoply of health-related regulations, therefore it is implausible that the institution of new regulations would come as a surprise, or that such changes would so substantially interfere with any expectations Plaintiffs may have had, as to require compensation.
- Finally, the Court found that Key to NYC was a temporary program and did not preclude all economic use of Plaintiffs’ property, it was a negative restriction on their property use, rather than an affirmative exploitation by the state, and it was not a physical invasion or permanent appropriation of any of the Plaintiffs’ assets. Any interference with Plaintiffs’ property arose from a public program adjusting the benefits and burdens of economic life to promote the common good, in this case, reducing the transmission of COVID-19.
Conclusions of the deciding body
The Court has dismissed Plaintiffs’ First Amendment, Fourth Amendment, Fourteenth Amendment, and Supremacy Clause claims without prejudice and dismissed their Fifth Amendment claim with prejudice.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to privacy
- Right to property
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom to conduct a business
- Health v. right to privacy (private and family life)
- Health v. property
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied balancing techniques regarding the common good and the individual rights of the Plaintiffs: “Any interference with Plaintiffs’ property arises from a public program adjusting the benefits and burdens of economic life to promote the common good, in this case, reducing the transmission of COVID-19.”
