Weisshaus v. Cuomo

• Decision Date: 11 January 2021
• Docket Number: 20-cv-5826 (BMC)
• Parties: Yoel WEISSHAUS, Plaintiff, v. Andrew CUOMO in his official and individual capacity, Defendant.
• Court: U.S. District Court — Eastern District of New York

512 F.Supp.3d 379

Yoel WEISSHAUS, Plaintiff,

v.Andrew CUOMO in his official and individual capacity, Defendant.

20-cv-5826 (BMC)

United States District Court, E.D. New York.

Signed January 11, 2021

Eugene Michael Lynch, Law Office of Eugene M. Lynch, Brooklyn, NY, for Plaintiff.

Todd Alan Spiegelman, Nys Attorney General's Office, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

In September 2020, the Governor of New York issued Executive Order 205.1 in response to the ongoing COVID-19 pandemic. The Order requires, among other things, that certain travelers complete the "New York State Traveler Health Form." Travelers must disclose whether they have arrived from a country with a moderate or high rate of COVID-19, whether they have recently tested positive for the disease, and whether they have recently experienced any symptoms.

Plaintiff Yoel Weisshaus moves for a preliminary injunction of that requirement, arguing that it violates numerous constitutional provisions. I interpret the obscure complaint as raising claims based on the Supremacy Clause, the constitutional right to interstate travel, the freedom of international travel, the constitutional right to informational privacy, and the substantive component of the Due Process Clause of the Fourteenth Amendment. Because plaintiff cannot show irreparable harm, a likelihood of success on the merits, or that the public interest weighs in favor of an injunction, the motion is denied.

BACKGROUND

I. The Executive Orders and the Traveler Health Form

In June 2020, the Governor issued Executive Order 205, authorizing the Commissioner of the Department of Health to issue a "travel advisory" along with "additional protocols for essential workers, or for other extraordinary circumstances, when a quarantine is not possible, provided such measures continue to safeguard the public health." The Commissioner then issued "Interim Guidance for Quarantine Restrictions on Travelers Arriving in New York State Following Out of State Travel." The document "sets forth the policies to be followed in New York State to effectuate the Department of Health travel advisory." It provides that all travelers must quarantine for fourteen days if they enter New York from states with high rates of COVID-19.

Soon after, the Commissioner issued an "Order for Summary Action," which provides that "all travelers subject to Executive Order No. 205 shall complete the New York State Traveler Health Form." Travelers must "submit the complete form to the New York officials stationed at the airport, or in a receptacle designated for such forms." The State offers additional information on its website:

As part of the enforcement operation, enforcement teams will be stationed at airports statewide to meet arriving aircrafts at gates and greet disembarking passengers to request proof of completion of the State Department of Health traveler form, which is being distributed to passengers by airlines prior to, and upon boarding or disembarking flights to New York State.

All out-of-state travelers must complete the form upon entering New York. Travelers who leave the airport without completing the form will be subject to a $10,000 fine and may be brought to a hearing and ordered to complete mandatory quarantine.¹

The State has carved out certain exceptions for essential workers.

A few months later, in September, the Governor issued Executive Order 205.1. It modified Executive Order 205, requiring the Commissioner "to add to such travel advisory that travelers entering the United States from any country with a CDC Level 2 or Level 3 health notice ... shall complete the Department of Health [T]raveler [H]ealth [F]orm or be subject to civil penalty pursuant to the Public Health Law and regulations of the Department of Health."²

The Traveler Health Form explains that "[i]n response to increased rates of COVID-19 transmission in the United States and other countries ... [New York State] has issued a travel advisory for anyone entering [the state] from a non-bordering state or [who has] traveled internationally under a CDC level 2 (moderate risk) or 3 (high-risk) COVID-19 travel health notice." All travelers must disclose whether they have taken a COVID test and whether they have experienced any COVID symptoms in the last 72 hours. The form also asks travelers to disclose whether they have traveled to a CDC level 2 or 3 country in the last two weeks. If so, the travelers must disclose the country, the duration of their stay, and their destination in New York State. Travelers complete the form under penalty of perjury.

The Department of Health uses the data from the Traveler Health Form to enforce the quarantine requirement. If health officials determine that a traveler must quarantine, they text or call that person each day during the quarantine period. Health officials also enter the traveler's data into their system so they can perform contact tracing. The State maintains that all information is confidential.

II. Plaintiff's Allegations

On November 18, 2020, plaintiff landed at John F. Kennedy International Airport ("JFK") after traveling overseas. At customs, federal officials handed him a pamphlet with information from the CDC, which explains that he "may have been exposed to COVID-19 while traveling" and instructs him how to "prevent others from getting sick." Federal officials also asked if he had experienced any symptoms of COVID-19. Plaintiff avers that he left the customs "screening area" and, within 100 feet, encountered "armed security person[nel]" who had "barricaded" an area. They instructed him to complete the Traveler Health Form. When he refused, one official said, "You cannot leave until you complete this form." Plaintiff completed the form. He returned home to New Jersey.

Soon after, plaintiff brought this suit under 42 U.S.C. § 1983, seeking damages and injunctive relief. In an affirmation attached to his motion for a preliminary injunction, plaintiff revealed that he has scheduled another overseas trip for January 2021. He will return to the United States on January 13. By forcing him to fill out the form again, he argues, state officials will violate the Supremacy Clause, the Privileges or Immunities Clause of the Fourteenth Amendment, and the Due Process Clause of the Fourteenth Amendment.

Plaintiff asserts a litany of claims under these provisions, citing violations of his right to interstate travel, his freedom of international travel, his right to avoid disclosure of certain personal information, and his right to be free from an unlawful detention. Due to this lack of clarity and the short timeframe for ruling on the motion, I denied plaintiff's request to consolidate the hearing for the preliminary injunction with a trial on the merits. The parties also indicated at a conference that neither desired an evidentiary hearing or oral argument.³

DISCUSSION

I. The Preliminary Injunction Standard

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "For a preliminary injunction to issue, the movant must establish (1) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor, and (2) irreparable harm in the absence of the injunction." Kelly v. Honeywell Int'l, Inc., 933 F.3d 173, 183–84 (2d Cir. 2019). The Second Circuit has recognized "limited exceptions to this general standard." Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010). As relevant here, a modified standard applies if the plaintiff "seeks to stay government action taken in the public interest pursuant to a statutory or regulatory scheme." Id. (quoting Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) ). The Second Circuit recently applied this standard in a challenge to one of the Governor's executive orders concerning COVID-19. Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 630–31 (2d Cir. 2020) (addressing restrictions on religious gatherings). Here, therefore, plaintiff "must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction." Id. (quotation omitted). Since both irreparable harm and the likelihood of success on the merits require a claim-specific analysis, I will begin with the public interest analysis, for it applies equally to each claim at issue.

II. The Public Interest

Plaintiff cannot show that the public interest weighs in favor of granting the injunction. Outside the First Amendment/free exercise context, courts have overwhelmingly concluded that enjoining state health measures during this pandemic is not in the public interest. See Geller v. Cuomo, 476 F.Supp.3d 1, 14–15 & n.24 (S.D.N.Y. 2020) ; cf. Roman Catholic Diocese of Brooklyn v. Cuomo, ––– U.S. ––––, 141 S. Ct. 63, 70-71, 208 L.Ed.2d 206 (2020) (Gorsuch, J., concurring) (distinguishing substantive due process claims from free exercise claims); id. at 74 (Kavanaugh, J., concurring) (noting that federal courts "must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic" but "judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised").

There is good reason to think that the public interest does not favor an injunction in this case. In New York State alone, COVID-19 has claimed over 38,000 lives.⁴ It is spread through airborne transmission,⁵ and travel can further the spread.⁶ As the CDC explains:

Air travel requires spending time in security lines and airport

...