The oral argument in the stay of the New York State regulation mandating Covid vaccination (with no religious exemptions) has just finished. The judges took the case under submission, meaning they will issue a decision sometime in the very near future. (I am thinking by the close of business today, or tomorrow at the latest).

I learned a couple of new things: First, there are currently three TROs barring enforcement of the regulation, the Northern District federal case as well as two state cases.
Second, the original emergency rule issued by the state health commissioner had a religious exemption, but the formal rule which went through the whole administrative rule-making process did not.

My impression: First, the judges were concerned about the paucity of the factual record before it. They wanted to know how rare or few medical exemptions had been given out compared to how many religious exemptions there might be. The State was forced to look to prior vaccine mandates. Because it was just audio, it was hard to follow which judge was saying what. One judge for sure was going to rule against the plaintiffs. The same or another judge was concerned about the lack of practical effect that a stay would have since the plaintiffs were covered by the three TROs currently in effect. Plaintiffs’ counsel didn’t have a good response to that concern for the simple reason that he couldn’t tell the court what I think was the real reason for seeking a stay/injunction of the regulation from the appellate court. If the second circuit granted the injunction then it wouldn’t matter what would happen at the lower courts in the other cases. The state-wide injunction would continue in effect until at least the formal appeal of the Brooklyn federal district courts order to the Second Circuit was heard and decided. Tactically, it was a smooth move.

After hearing the argument, I don’t think the panel will reach the merits of the case. I think they will deny the injunction request either without explanation or a short explanation that it is unnecessary because of the other three TROs and because courts do not issue extraordinary relief unless it is absolutely necessary (or to protect the status quo) and that is simply not the case here because plaintiffs counsel was forced to admit that all of his clients are still working and are covered by the injunctions in the other cases. To me that was the kiss of death to plaintiffs’ request.

Also, I think what’s going through the panel members’ minds is that the record is just too sparse to say anything on the merits. So when in doubt, punt. In this case, that means deny the request and say as little as possible to give the other courts room to cogitate and consider a fuller record.

If I am right, the good news will be that it won’t be a negative substantive opinion, which in this legal environment isn’t half bad.

Rick Jaffe, Esq.