Centers for Disease Control and Prevention

NY Mandate Case: Supreme Court

NY Mandate Case: Supreme Court

Re: the Legality of Mandating Vaccines to City Employees

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Facts of the Case

Dates: 2021-Oct 2022
Location: New York City
Court: Supreme Court of NY
Case #: 85163/2022
Plaintiff: NY Sanitation Workers
Plaintiff’s Lawyer: Chad LaVeglia

Defendant: City of NY, DOHMH, Dept of Sanitation & NY Mayor Adams
Trial Type: Supreme Court of NY
Judge: Ralph J. Porzio
Status: Decided (Oct 24 2022)
Verdict: for the Plaintiff

*updated Oct 27, 2022

Background

One year ago in October 2021, New York City enacted a Covid vaccine mandate which required all city staff to show proof that they obtained at least one jab. Employees who did not comply by Oct. 29 were subject to termination. [1]

Despite the fact that they continued to work full-time for nearly four months after the mandate began, the unvaccinated plaintiffs were fired in February 2022 after they received “generalized and vague denials” of their shot exemptions. [1]

Mayor Eric Adams expanded the mandate to private sector employees in December 2021 [1] and then backtracked on March 24, 2022, Mayor Adams enacted Executive Order No. 62, which provided blanket exemptions from the private employers’ vaccine mandate for athletes, performers, and other artists [2]

Nearly 1,500 New York City workers including police officers lost their jobs due to the city’s discriminatory jab mandate. Hundreds of others left their places of employment after being forced to choose between their job and their autonomy. [1]

As a result, thousands of New Yorkers protested the state’s medical coercion of state workers, health-care workers, and teachers. They also expressed frustration with the city’s attempt to force businesses to require verified “vaccine passports” in exchange for goods and services when there was no proof that the shot prevented virus spread, something the court acknowledged in its ruling. [1]

According to the court filing, the Department of Sanitation employees were terminated in February 2022 for “failure to comply with vaccination requirements” after the health commissioner of the City of New York, David Chokshi, issued a vaccination mandate requiring all city employees to show “proof of at least one dose of vaccination against COVID-19” by Oct. 29. [2]

Significance

This case has the potential to undo every vaccine mandate across the USA and to expose the faulty science behind covid injections.

Plaintiff’s Argument

“The petitioner’s central argument is that Mayor Adam’s Executive Order #62, the private exemption order, rendered the public employee vaccination mandate arbitrary and capricious or unconstitutional. Furthermore, the Petitioners all claim, and provided lab documentation, that they have natural immunity to Covid19 from prior infection(s).” [4]

Defendant’s Argument

“The Respondent’s central argument is that the private employers’ exemption order and the public employee vaccination mandates were “created separately and exist independently of each other.” [4]

Relevant Prior Judgements/ Cases

…More information is needed…

Decision

The sixteen New York City Department of Sanitation workers were reinstated to full employment and will receive more than eight months of back pay after the New York Supreme Court ruled that they were wrongfully terminated under the city’s “arbitrary and capricious” Covid jab mandate. [1]

Porzio’s ruling states that the Oct. 20, 2021, and Dec. 13, 2021, rulings from the commissioner of health and mental hygiene ordering that all employees get vaccinated are “arbitrary and capricious,” ordering that the petitioners be reinstated to their full employment status, and entitled to back pay in salary from date of termination. [2]

Judge Ralph J. Porzio wrote in his ruling that the vaccination mandate for city employees was “not just about safety and public health; it was about compliance.” [2]

“that if the vaccine mandate was about “safety and public health, unvaccinated workers would have been placed on leave the moment the order was issued.” [2]

“If it was about safety and public health, the Health Commissioner would have issued city-wide mandates for vaccination for all residents,” he continued. “In a City with a nearly 80% vaccination rate, we shouldn’t be penalizing the people who showed up to work, at great risk to themselves and their families, while we were locked down.” [2]

“There is nothing in the record to support the rationality of keeping a vaccination mandate for public employees, while vacating the mandate for private sector employees or creating a carveout for certain professions like athletes, artists, and performers,” the court wrote. “This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency.” [1]

The court also acknowledged that because the plaintiffs had natural immunity against Covid thanks to prior infections, and determined that because the city’s Board of Health “does not have the authority to unilaterally and indefinitely change the terms of employment for any agency,” the sanitation workers were wrongfully terminated. [1]

“This Court does not have a basis to disagree with temporary vaccination orders during a public health emergency, however, ordering and enforcing that vaccination policy on only a portion of the populace for an indefinite period of time, is akin to legislating,” the court wrote, noting that “states of emergency are meant to be temporary.” [1]

“Being vaccinated does not prevent an individual from contracting or transmitting Covid-19,” the court acknowledged. “The petitioners should not have been terminated for choosing not to protect themselves. We have learned through the course of this pandemic that the vaccine against Covid-19 is not absolute.” [1]

The court found that “being vaccinated does not prevent an individual from contracting or transmitting COVID-19,” adding that vaccinated and unvaccinated individuals have the same quarantine and isolation guidelines issued by the Centers for Disease Control and Prevention. [3]

“It is time for New York to do what is right and what is just,” Porzio concluded. [3]

Aftermath

Response from the Plaintiffs

“Yesterday marked a historic victory for sanitation workers, all the brave NYC employees who serve the public and our representative democracy,” attorney Chad LaVeglia told The Daily Signal. “The court struck down NYC’s draconian, arbitrary, vaccine mandate on multiple constitutional and legal grounds. The thousands of city employees who were ignored now have a voice. And as the court recognized, they deserve better.” [2]

“The court also recognized a commonsense principle that has somehow eluded politicians like Eric Adams: Forcing one—and only one—segment of the population to get vaccinated during a worldwide outbreak is unconstitutional and arbitrary,” he added. “Sixteen sanitation workers fought back against tyranny. And won. This is a historic victory for individual rights, and the system of government mandated by the Constitution.” [2]

“It’s null and void, essentially,” LaVeglia said in a video on the NYCforYourself Twitter account. “We just defeated the vaccine mandate for every single city employee.” [3]

Such employees included workers from the Department of Education, New York Police Department, New York Fire Department, and the Department of Corrections — among other city staff in various departments. [3]

“For all the brave men and women who have been our first responders and have been brave through all this are now free, and you should be able to go back to work,” he added. [3]

Response from the Defendant

“The city strongly disagrees with this ruling as the mandate is firmly grounded in law and is critical to New Yorkers’ public health,” a New York Law Department spokesman said on Tuesday. “We have already filed an appeal. In the meantime, the mandate remains in place as this ruling pertains solely to the individual petitioners in this case. We continue to review the court’s decision, which conflicts with numerous other rulings already upholding the mandate.” [2]

Response from FDNY-Firefighters

FDNY-Firefighters Association President Andrew Ansbro and FDNY-Fire Officers Association President Lt. James McCarthy told Fox News that the groups support revoking the vaccine mandate implemented by city officials earlier this year. [3]

FDNY Association officials blasted Mayor Adams earlier this year for exempting athletes and performers from the mandate, adding it should have been extended to all New Yorkers. [3]

“We support the revocation of the mandate for the athletes and performers that work in New York City,” McCarthy said. “We think that the people that work for New York City should also have the mandate relocated for them.” [3]

Ansbro said if Adams removed the vaccine mandate for certain people, “you need to remove it for everybody in the city.” [3]

“If you’re gonna follow the science, science is gonna tell you there isn’t any danger right now and putting hundreds of firefighters, police officers, and other emergency workers out of work is not in the best interest of the city. It’s not safe,” Ansbro said. [3]

Further Research

Court Documents:

Read the Court Ruling

In the news:

Media

NY Supreme Court Judge Demolishes Vax Mandate -Oct 26 2022

source: Odysee/ RPLR

CDC Director Must Apologize For Misinformation -Oct 26 2022

source: Rumble/Sunfellow On COVID-19

EPM Rob Roos: Pfizer Admits Vaccines Not Tested For Prevention -Oct 20 2022

source: Rumble/Sunfellow On COVID-19

Back to All Cases

Florida Ends Mask Mandate Case

Florida Ends Mask Mandate Case

Re: the Legality of CDC’s authority to mandate masks

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Facts of the Case

Dates: (filed) July 12, 2021
Location: Tampa, Fla, USA
Court: US District Court, Middle District of Florida, Tampa Div
Case #: 8:21-cv-01693 \ 8:21-cv-1693
Plaintiff: HFDF, Ana Carolina Daza & Sarah Pope
Plaintiff’s Lawyer: Hadaway

Defendant: Joe Biden, CDC, HHS
Trial Type:
Judge: Kathryn Kimball Mizelle
Status: Decided (April 18, 2022)
Verdict: for the Plaintiff

*updated April 27,2022

Background

The lawsuit – challenging the validity of Mask Mandates– was brought by two Florida residents who argued that being required to wear masks on airplanes aggravated their anxiety—a condition that is not exempted from forced masking under the mandate. They are represented by the Health Freedom Defense Fund (HFDF). [3]

HFDF is a not-for-profit public benefit Wyoming corporation with its headquarters in Sandpoint, Idaho. HFDF is a member organization that seeks to advocate for and educate the public on the topics of medical choice, bodily autonomy, and self-determination, and
that opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will. [5]

“The CDC is not a nationwide police force, and is not empowered to make laws,” said Leslie Manookian, Founder and President of Health Freedom Defense Fund. “Nevertheless, with no legal authority to do so, these unelected, unaccountable technocrats have forced every citizen in America to wear a mask when they travel. We believe that Americans have the right to think for themselves and make their own health care choices without the meddling of government. Americans must not be dictated to in this manner by anyone, let alone unelected, unaccountable technocrats at CDC.” [4]

the order

The mask-wearing requirement had been initially imposed in early 2021, shortly after President Joe Biden took office in an effort to slow the spread of COVID-19. [1] – Executive Order Number 13998 issued by Defendant Biden on January 21, 2021 [5].

Shortly thereafter, the nationwide mask mandate was issued by the CDC – a department of HHS, on January 29, 2021, entitled, “Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs” (the “Mask Mandate”), 86 Fed. Reg. 8025, [5]–

Just last week, the (CDC) agency extended the transportation mask mandate (which had been set to expire originally on April 18) through May 3 — allowing officials to take more time to study the BA.2 subvariant of COVID-19. [1]

The Problem with Mask Mandate

“The fact is that the police power — that is the power to regulate the health, safety and welfare of Americans — was specifically reserved to the States by our Constitution,” said George Wentz of the Davillier Law Group, legal counsel for the Plaintiffs. “With the mask mandate, not only does the CDC usurp the role of the States by attempting to exercise general police powers, but at the same time it steps into the shoes of Congress and makes a nationwide law. We are confident that the CDC is way out of bounds here, and the Court will strike down the mask mandate.” [4]

Masks have been approved for use by the general public under an emergency use authorization (EUA) and are considered investigational products under the law. Their efficacy has not been proven, and their short and long-term side effects have not been studied. Recent studies have shown that masks do more harm than good, and expose the wearer to levels of carbon dioxide well above levels permitted by OSHA in the workplace. [4]

Members of Health Freedom Defense Fund feel strongly that they should not, and cannot, be forced to wear masks and that no one should have the power to force another person to cover their airway. [4]

Airline CEO’s Call to End Masks

Last month (March 2022), governors from 21 states sued the Biden administration to end the federal public transportation mask mandate, arguing that the continued enforcement “harms the states” and interferes with some local laws. [1]

In an open letter released by the travel-industry lobbying group Airlines for America, the group is calling on the Biden administration to “sunset federal transportation travel restrictions.” The group argues that the restrictions no longer reflect the “realities of the current epidemiological environment.” [2]

The letter was signed by the leaders of 10 U.S. companies, including six of the largest airlines in the country: Alaska Airlines, American, Delta, JetBlue, Southwest and United. [2]

“It makes no sense that people are still required to wear masks on airplanes, yet are allowed to congregate in crowded restaurants, schools and at sporting events without masks, despite none of these venues having the protective air filtration system that aircraft do,” wrote the CEOs of all major airlines in a letter to the Biden administration. [3]

21 States Challenge the Mask Mandate

Governors from 21 states are suing to end the federal public transportation mask mandate, claiming the continued enforcement “harms the states” and interferes with some local laws. [7]

“President Biden’s shortsighted, heavy-handed and unlawful travel policies are frustrating travelers and causing chaos on public transportation,” Florida Attorney General Ashley Moody, who is leading the states’ effort, said in a statement. “It’s long past time to alleviate some of the pressure on travelers and those working in the travel industry by immediately ending Biden’s unlawful public transportation mandates.” [7]

Joining the mostly Republican-led effort are three states with Democratic governors — Kansas, Kentucky and Louisiana. [7]

Last month (Feb 2022), leaders in Texas filed their own, similar complaint against the Biden administration. [7]

The Centers for Disease Control and Prevention’s (CDC) mandate was unlawfully issued. It was not authorized by Congress, and the CDC did not put the mandate up for notice and comment, which is ordinarily required for regulations like this. Yet a person’s failure to comply with the Administration’s mask mandate carries criminal penalties. [8]

“Biden’s repeated disregard of the individual liberties of Texans is not only disrespectful to the U.S. Constitution, it is also troublesome that any president thinks they can act above the law while hardworking Americans standby,” said Attorney General Paxton. “President Biden cannot continue governing through executive edicts. Now is the time to strike down his administration’s air-travel mask mandate. I’m proud to stand alongside my friend Congresswoman Van Duyne and her counsel at TPPF to protect Texans’ liberty and the rule of law.” [8]

(Read a copy of the Texas complaint here)

Many states and cities have already lifted COVID-19 restrictions as they’ve seen a decline in cases and hospitalizations locally. [7]

The states’ lawsuit says the CDC should end its mandate in light of this trend. [7]

“More recently, even lockdown States like California have announced the end of their mask mandates. Still, the CDC unabashedly leaves its mandate intact,” their complaint says. [7]

Significance

This challenge could undo the power of the Federal government to enforce Mask Mandates

Plaintiff’s Argument

(from the original complaint) [5]

5. Plaintiffs challenge the Mask Mandate pursuant to 5 U.S.C. § 706(2) of the Administrative Procedure Act (the “APA”) on grounds that it:

a. is not in accordance with and exceeds the CDC’s statutory and regulatory authority under 42 U.S.C. § 264(a) and 42 C.F.R. §§ 70.2,
71.31(b), and 71.32(b);
b. is a rule that was enacted without observance of notice and comment procedures required by the APA; and/or
c. is arbitrary and capricious, in that it exempts children under age 2 without regard to scientific evidence of the impact of prolonged mask use on persons of all ages.

6. Alternatively, if the Mask Mandate does not exceed Defendants’ statutory and regulatory authority, then 42 U.S.C. § 264 (a) constitutes an unlawful delegation of legislative authority.

7. As well, Plaintiffs challenge the Executive Order on grounds that it constitutes an improper exercise of legislative authority by the Executive Branch, and that it further improperly asserts a general police power that has traditionally been relegated to the States, in derogation of the Separation of Powers under the United States Constitution.
Case 8:21-cv-01693 Document 1 Filed 07/12/21 Page 3 of 28 PageID 3

Defendant’s Argument]

…More information is needed…

Relevant Prior Judgements/ Cases

a Florida Federal Court has struck down the CDC’s cruise line order as unsupported by law, and five justices of the Supreme Court recently appear to have agreed that the CDC over reached with its nationwide eviction moratorium. [4]

Decision

U.S. District Judge Kathryn Kimball Mizelle ruled that the federal mask mandate on planes, trains, buses and other modes of public transportation is “unlawful.” [1] and Vacates It [3]

“Within the past two years, the CDC has found within § 264(a) the power to shut down the cruise ship industry, stop landlords from evicting tenants who have not paid their rent, and require that persons using public conveyances wear masks. Courts have concluded that the first two of these measures exceeded the CDC’s statutory authority under §264. … [9]
No court has yet ruled on the legality of the third. At first blush, it appears more closely related to the powers granted in§ 264(a) than either the sail order or the eviction moratorium. But after rigorous statutory analysis, the Court concludes that§ 264(a) does not authorize the CDC to issue the Mask Mandate….” [9]
“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” writes Judge Kathryn Kimball Mizelle. [3]

Mizelle wrote in a summary that the Centers for Disease Control and Prevention had exceeded its authority and failed to follow proper rulemaking procedures. [1]

In a 59-page ruling, Mizelle argues that the mandate violates the Administrative Procedure Act, as the agency failed to prove its decision regarding implementing the mandate [1]

The ruling was detailed in analyzing the language of the CDC’s authority as written by Congress in 1944. In particular the meaning of words such as sanitation were scrutinized as to their original meaning– not the re-interpretation by the CDC today. [9]

“One definition it relies upon is even broader, defining “sanitation” as the “applying of measures for preserving and promoting public health.” If Congress intended this definition, the power bestowed on the CDC would be breathtaking. And it certainly would not be limited to modest measures of “sanitation” like masks. It would also justify requiring that businesses install air filtration systems to reduce the risks from airborne contagions or install plexiglass dividers between desks or office spaces. So too, a power to improve “sanitation” would easily extend to requiring vaccinations against CO VID-19, the seasonal flu, or other diseases. Or to mandatory social distancing, coughing-into-elbows, and daily multivitamins….” [9]

Further the infringement on the powers of the state was important. As were the guidance in the statute that Congress authorised the CDC to deal with foreign travel and not domestic\interstate travel. It was also found illegal that the public were not allowed a voice which is required by law.

Finally the judge found the claim by the CDC that masks were needed without providing any evidence to prove this, extremely troubling and highly insufficient to restrict the liberties of all people including the healthy [9]

“Although a closer question than the failure to properly invoke the good cause exception, the Mask Mandate fails this reasoned-explanation standard. Beyond the primary decision to impose a mask requirement, the Mask Mandate provides little or no explanation for the CDC’s choices. Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions. And there are many, such that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned.” [9]
“…the Mask Mandate fails this reasoned-explanation standard. Beyond the primary decision to impose a mask requirement, the Mask Mandate provides little or no explanation for the CDC’s choices. Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions. And there are many, such that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned.” [9]
“The Mandate does not address alternative (or supplementary) requirements to masking, such as testing, temperature checks, or occupancy limits in transit hubs and conveyances. It also does not explain why all masks – homemade and medical-grade – are sufficient. Nor does it require “social distancing [or] frequent handwashing,” despite finding these effective strategies for reducing CO VID-19 transmission…” [9]
“Even if these alternatives were not so obvious that the CDC had to explain its decision to reject them, the Mandate fails to explain other significant choices. For example, the Mandate relies on studies explaining that “universal masking” reduces transmission of COVID-19 at the community level. 86 Fed. Reg. at 8028.” [9]
“But the Mandate does not require universal masking. It exempts individuals who are “eating, drinking, or taking medication” and a person who is “experiencing difficulty breathing” or who is “feeling winded.” It also excludes individuals who cannot wear a mask due to an ADA-recognized disability and all children under two years old. The Mandate makes no effort to explain why its purposes-prevention of transmission and serious illness-allow for such exceptions. Nor why a two-year-old is less likely to transmit COVID-19 than a sixty-two year-old….” [9]
“In sum, irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did. Since the CDC did not explain its decision to compromise the effectiveness of its Mandate by including exceptions or its decision to limit those exceptions, the Court cannot conclude that the CDC “articulated a ‘rational connection between the facts found and the choices made.”[9]

Aftermath

Government Reaction

“The agencies are reviewing the decision and assessing potential next steps. In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time,” according to a Biden administration official. [1]

“Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time.” [1]

Defendant’s Response

“The court agreed with our main arguments and rejected the CDC’s justifications for the mask order,” said Daviller Law Group attorney Brant C. Hadaway. “The judge found that the CDC exceeded its statutory authority, and that the CDC’s interpretation of its authority was not entitled to deference.” [6]

“An agency is also supposed to provide notice and comment and reasonably explain itself,” Hadaway said. “The CDC’s mask order fell short of both requirements.” [6]

“Without any public comment, or serious scientific justification, CDC bureaucrats imposed a sweeping Travel Mask Mandate applying to every American over the age of two,” said HFDF President Leslie Manookian. “There are laws that set boundaries for federal agencies to protect individual freedom and the Court clearly found that CDC exceeded those limits. Unelected officials cannot do whatever they like to our personal freedoms just because they claim good motives and a desirable goal.” [6]

Airlines Response

United Airlines has put out an official statement that clarified that it will no longer be enforcing masks on airline travel. [10]

“Effective immediately, masks are no longer required at United on domestic flights, select international flights (dependent upon the arrival country’s mask requirements) or at U.S. airports,” UA said in a statement. [10]

Alaska Airlines has also reportedly lifted its mask mandate. [10]

The TSA announced it was no longer enforcing it. [10]

Admin Official: “Today’s court decision means CDC’s public transportation masking order is not in effect at this time. Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time” [11]

Both United and American Airlines tell @ABC they will continue to require masks on board aircraft for customers and employees, “despite the decision by a federal judge on Monday that struck down the federal mask mandate” as they await on more guidance from the US government. [12]

Liberty Counsel Founder and Chairman Mat Staver said,

“Since the beginning of the COVID pandemic the CDC has unlawfully exceeded its authority and discredited the agency by its contradictory and ever-changing statements. This court decision is yet another blow to the CDC and the Biden administration. Many people have been harassed, punished, and fined over the travel mask mandates stemming from the CDC’s unlawful policy. Any traveler who was punished over this mask mandate should have that punishment reversed. The CDC should be the watch dog to protect public health. However, like the FDA, it has become the lapdog for the pharmaceutical industries and specials interest groups. Liberty Counsel is continuing the fight to get all the shot mandates overturned.” [13]