Opinion
Index No. 901953-22
08-26-2022
In the Matter of the Application of Nicole Ventresca-Cohen, Steven Annunziata, Adrienne Asencio, Karen Boback, Richard Brink, Monica Bunce, Roxanne Buss, Fran-Marie Cheresnowsky, Donna Cichon, Suzette Colon, Jeannette Dantes, Danielle Davidson, Heather Dulaney, John Fleming, Patricia Hall, Jamie Hawley, Evelyn Herrera, Wanda Ingraham, Margaret McCormick, Emilce Mercuri, Victoria O'Donnell, Victoria Ososkalo, Jason Pashoukos, Noelle Platt, Meredith Pratt, Jamie Rahm, Alyssa Sullivan, and Brian Wilson, Petitioners, v. Janet M. DiFiore, as Chief Judicial Officer of the State and Chief Judge of the Court of Appeals; Lawrence K. Marks, as Chief Administrative Judge of the Courts; and the New York State Unified Court System, Respondents
Civil Service Employees Association Counsel's Office Steven M. Klein, Esq. Attorneys for Petitioners Eileen D. Millett Counsel, Office of Court Administration Pedro Morales, Esq. Catherine Jakubik, Esq. Attorneys for Respondents
Civil Service Employees Association Counsel's Office Steven M. Klein, Esq. Attorneys for Petitioners
Eileen D. Millett Counsel, Office of Court Administration Pedro Morales, Esq. Catherine Jakubik, Esq. Attorneys for Respondents
Denise A. Hartman, J.
In this CPLR article 78 proceeding, petitioners challenge as arbitrary and capricious 29 separate determinations by respondents Janet M. DiFiore, as Chief Judge of the Court of Appeals; Lawrence K. Marks, as Chief Administrative Judge of the New York State Court; and the New York Unified Court System (hereinafter referred to collectively as UCS) denying petitioners' requests for religious exemptions from its mandatory COVID-19 vaccination policy for non-judicial employees. UCS has answered, provided the administrative record, and filed an affidavit in support of their determinations. For the reasons that follow, the petition is granted to the extent that, with respect to certain petitioners, the matter is remitted for further determinations not inconsistent with this decision; the petition is otherwise denied.
Background
The Vaccination Policy and Application Process
During the COVID-19 pandemic, the Unified Court System adapted to evolving conditions and expert recommendations in an effort to keep New York's courts open and operative, safe for public users and employees alike. Toward that end, on or about August 25, 2021, UCS adopted and began to implement a mandatory vaccination policy. That policy required, among other things, that all non-judicial employees receive a vaccination against COVID-19 by September 27, 2021, unless exempted from the vaccine on medical or religious grounds.
To facilitate the review of exemption requests, UCS established a statewide Vaccination Exemption Review Committee and created an exemption application form. Any UCS employee who wished to request an exemption was required to complete and submit the application form, including an Affidavit of Religious Objection to COVID-19 Vaccination and Personal Statement Form, as well as any additional appropriate or necessary documentation to support the applicant's request. The application form required the individual to swear or affirm the truth of a series of statements about his or her religious beliefs - including a statement that the vaccination is contrary to a sincerely held religious belief and the objection to the vaccine is not solely based on grounds of personal concern, preference, or beliefs, inconvenience, or intellectual belief or philosophy. The application form also required the individual to swear or affirm that he or she was willing to comply with the requirements of the exemption program. The form provided a space for the applicant to provide "a personal written and signed statement detailing the religious basis for [the] objection, explaining why [he or she was] requesting [a] religious exemption, the religious principle(s) that guide [his or her] objections to vaccination, and the religious basis that prohibits the COVID-19 vaccination." Employees seeking exemption were required to submit their applications by September 27, 2021.
The Committee received applications from approximately 940 employees. Upon review of these applications, the Committee found the majority of the applicants' religious objections were based upon: (1) the line of fetal cells derived from aborted fetuses having been used in the testing/manufacturing of the COVID-19 vaccine; and/or (2) the sanctity and purity of the applicant's body. But the Committee found that, in many cases, the applicants' personal statements provided insufficient information to assess whether the proffered opposition was based on a sincerely held religious belief, as opposed to a personal, philosophical or safety concern. So UCS created a Supplemental Affidavit of Religious Objection to COVID-19 Vaccination form (hereinafter the Supplemental form or application). The Supplemental form provided information about and a list of common over-the-counter drugs, such as acetaminophen, ibuprofen, aspirin, Naproxen, and Tums, and prescription drugs, such as hydroxychloroquine and Levothyroxine, which use fetal cell lines in testing:
"Below is a list of some common pharmaceutical products that have been tested using fetal cell line HEK293 (the same fetal cell line used in the testing of the Moderna and Pfizer COVID-19 vaccines). To completely avoid using products tested with the fetal cell line HEK-293, individuals would have to avoid the use of many medical treatments and products and certain processed food and cosmetics."
The Supplemental form then asked applicants to swear or affirm whether they: (1) had ever used any of the listed medications; (2) had used any of the listed medications in the past two years; and (3) would in the future use any of the listed medications, even if prescribed by a physician. If the answer to question (3) was yes, the Supplemental form asked for an explanation of how their willingness to use such medications in the future squares with their asserted religious beliefs. The Supplemental form also included questions about the applicants' past and intended conduct regarding other vaccines, medical treatments and procedures, and foods.
The Review Process
In reviewing the applications, the Committee applied the following standards. With regard to whether a belief was considered religious, the Committee looked at whether "the belief attributes its source to God, a supreme being, or an ultimate concern - that is more than an intellectual belief, opinion, or preference - to which the applicant feels obligated to adhere in complete disregard to self-interest." And, in considering the sincerity of the proffered religious belief, the Committee considered, among other things, whether the applicant's past and intended behavior appeared consistent with the professed beliefs.
The Committee adopted a blind review policy, meaning the identity of the applicant and personal information was redacted from the forms presented for consideration. The applications were divided between two working groups for initial review. UCS's in-house counsel attended meetings of both working groups. A quorum of at least three working group members was required at each review meeting. A majority vote of the working group members present was required to grant an application. If the majority of a working group quorum voted to deny a religious exemption request, the application was referred to the full Committee for further review. A quorum of the full Committee meeting was five members. If a majority of a quorum of the full Committee voted for denial, the employee was notified in writing of the denial and directed to submit proof of receipt of the first dose of a COVID-19 vaccine within 10 days.
In total, the Committee reviewed 937 religious exemption applications. Of the 937 applicants, the "vast majority" were required to submit the Supplemental form. In all, the Committee granted 555 of these applications and denied 382 applications. Those who were granted exemptions were required to comply with alternative pandemic protective measures, such as masking, testing, and isolation.
The Committee also reviewed 306 medical exemption requests, 105 of which were granted.
This CPLR Article 78 Proceeding
On March 21, 2022, petitioners - 28 non-judicial employees - commenced this CPLR article 78 proceeding challenging as arbitrary and capricious UCS's denial of their applications for religious exemptions. An amended petition, filed April 26, 2022, added an additional petitioner whose application was similarly denied. In support of the petition and amended petition, petitioners submitted their own applications, as well as the applications of six "comparators" - non-judicial employees whose applications for religious exemptions were granted. Petitioners argue that the similarity between their applications and the comparators' applications demonstrate that UCS's determination denying their applications was arbitrary and capricious and without a rational basis. Petitioners further argue that UCS provided "formulaic denial letters stating only that the individual's request for a religious exemption was considered and denied," which were "so bereft of detail that they prevented [p]etitioners from understanding why their requests were denied." And that UCS's failure to provide any detailed, specific reasons for its denials of petitioners' 29 exemption requests rendered such denials arbitrary and capricious.
UCS filed an answer to the amended verified petition, a record of the application documents for each petitioner and comparator, and a supporting affidavit of Justin Barry, Chief of Administration of the New York State Office of Court Administration, who set forth the reason or reasons each petitioner's application for an exemption was denied, and the reason or reasons each comparator's application was granted. UCS also submitted a memorandum of law in opposition to the amended petition. Petitioners then submitted a brief in support of the amended petition and in reply.
Analysis
When, as here, an administrative determination is made where an evidentiary hearing is not required by law, this Court's review is limited to whether UCS's determinations were made in violation of lawful procedure, were affected by error of law, or were arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 230-231 [1974]; Matter of Smith v City of Norwich, 205 A.D.3d 140, 142 [3d Dept 2022]). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.3d at 231; see Matter of Ward v City of Long Beach, 20 N.Y.3d 1042, 1043 [2013]; Matter of Wooley v New York State Dept. of Correctional Servs., 15 N.Y.3d 275, 280 [2010]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (see Matter of Ward v City of Long Beach, 20 N.Y.3d at 1043; Matter of Wooley v New York State Dept. of Correctional Servs., 15 N.Y.3d at 280).
Petitioners' Claims that the Determinations Must be Vacated Because They Were Made in Violation of Lawful Procedure
Petitioners contend that UCS violated lawful procedure in two ways: (1) UCS failed to give notice of the decision-making criteria for making its determinations to grant or deny religious exemptions from the vaccination mandate; and (2) UCS failed to provide individualized explanations for the denials of such exemptions. Neither claim warrants the relief petitioners request.
First, the central issue to be decided in the application process was indisputable - whether the applications for religious exemptions from the vaccination mandate were based on sincerely held religious beliefs. Sincerity of religious belief was the singular criterion for decision-making. Applicants were instructed in the initial application to "provide a personal written and signed statement detailing the religious basis for your vaccination objection, explaining why you are requesting this religious exemption, the religious principle(s) that guide your objections to vaccination, and the religious basis that prohibits the COVID-19 vaccination," and they were invited to submit additional pages of explanation. The information and questions contained in the Supplemental form were also clearly aimed at assessing the sincerity of the applicants' religious beliefs. Affiant Barry explained that the source of the standard employed by the Committee for assessing the sincerity of a professed religious belief is the law governing an employer's obligation to accommodate an employee's religious beliefs and practices, citing, among other cases, Baker v The Home Depot (445 F.3d 541, 546 [2d Cir 2006]), Int'l Soc. For Krishna Consciousness, Inc. v Barber (650 F.2d 430, 440 [2d Cir 1981]), and Eatman v United Parcel Serv. (194 F.Supp.2d 256, 268 [SD NY 2002]). Unremarkably, the caselaw UCS cites suggests common-sense consideration of multiple factors to determine the sincerity of professed religious beliefs: the underlying nature of the professed belief, the timing of asserting the professed belief, and whether the employee's conduct is consistent with the professed belief. Petitioners have cited nothing to support their argument that UCS was required to notify applicants on a more granular level how it intended to assess the sincerity of their religious beliefs.
See also Guidance Promulgated by the United States Equal Employment Opportunity Commission: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, L. Vaccinations - Title VII Religious Objections to COVID-19 Vaccine Requirements, https://www.eeoc.gov/coronavirus [last accessed Oct. 17, 2022].
Nor does the circumstance that UCS did not issue individualized rationale at the time of its denial, in and of itself, warrant the relief petitioners seek. UCS was tasked with deciding nearly 1,000 exemption applications under exigent circumstances. And the central basis for the administrative denials was readily apparent. Inferentially and unmistakably, UCS denied petitioners' applications because, in the Committee's view, the evidence before it did not support a finding that the request for an exemption was grounded in a sincerely held religious belief.
Moreover, it was permissible for UCS to provide more detailed reasons for denying petitioners' applications in response to the petition. In CPLR 7803 (3) proceedings, responsive affidavits, made by an affiant with firsthand knowledge of the decision-making process undertaken by the agency which were not part of the administrative record, may be considered to provide rationale not articulated on the face of an agency determination (see Matter of Menon v State Dept. of Health, 140 A.D.3d 1428, 1431 [3d Dept 2016]; Matter of Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 A.D.3d 1402, 1405-1406 [3d Dept 2012]; see also CPLR 7804 [d]). Courts may properly consider such affidavits where, as here, there is no administrative hearing and the issue is not one of substantial evidence, but, rather, whether the agency's determination has a rational basis (see Matter of Matter of Brown v Sawyer, 85 A.D.3d 1614, 1616 [4th Dept 2011]; Matter of Kirmayer v New York State Dept. of Civ. Serv., 24 A.D.3d 850, 851-852 [3d Dept 2005]). This case does not challenge determinations made after a hearing required by law, where there is a hard-and-fast rule that the agency must issue a reasoned decision, nor is there some other statute requiring such a reasoned decision at the administrative level (cf. Matter of Gidney v Zoning Bd. of Appeals of City of Buffalo, 207 A.D.3d 1025, 1026-1027 [4th Dept 2022]).
Here, UCS submitted the affidavit of Justin Barry, Chief of Administration of the New York State Office of Court Administration, who was integrally involved in implementing the vaccination policy and exemption proceedings. He addressed each petitioner's application and set forth individualized reasons for the exemption denial. And petitioners had, and exercised, their opportunity to file a reply to the Barry affidavit. The Court finds no procedural infirmity in the use of form denials where, as here, the rationale for each determination, if not implicit from the outset, was spelled out in the Barry affidavit, and petitioners have had an opportunity for reply.
Furthermore, the cases cited by petitioners - Matter of Ansbro v Nigro (index No. 150230/2022 [Sup Ct, NY County 2022]) and Loiacono v Board of Ed. of the City of New York (index No. 154875/2022 [Sup Ct, NY County 2022]). - are inapposite, distinguishable, or unpersuasive.
In Ansbro, Supreme Court denied the petitioners' motion for a preliminary injunction, but found that the petitioners had demonstrated a likelihood of success of the merits. That case is distinguishable, however, as the Ansbro petitioners claimed that their reasonable accommodation requests were denied without a sufficient "cooperative dialogue," a specific requirement under the State and New York City Human Rights Law, which is not at issue here (see Hosking v Memorial Sloan-Kettering Medical Ctr., 186 A.D.3d 58, 64 [1st Dept 2020]).
And in Loiacono, Supreme Court held that the respondent's failure to provide at the agency level an adequate reasoning for its determination rendered such determination arbitrary and capricious. But it does not appear that, in rendering its decision, Supreme Court considered the fact that, in certain situations, responsive affidavits may be considered to provide a rationale missing on the face of an agency determination (see Matter of Menon v State Dept. of Health, 140 A.D.3d at 1431; Matter of Office Bldg. Assoc., LLC v Empire Zone Designation Bd., 95 A.D.3d at 1405-1406). And in any event, while the respondent in Loiacono attached a position statement as an exhibit to its answer, the document was undated and without an author. Here, on the other hand, UCS submitted the sworn affidavit an individual with firsthand, personal knowledge of the decision-making process and rationale employed at the agency level.
Matter of Deletto v Adams, another decision recently issued by Supreme Court in New YorkCounty (2022 WL 4298736, 2022 NYLJ LEXIS 1306 [Sup Ct, NY County 2022]), is similarly distinguishable. In Deletto, Supreme Court found that the respondent's determination was arbitrary and capricious because it did not provide at the agency level a rationale for its determination denying the petitioner's religious exemption request. In the CPLR article 78 proceeding, counsel for the respondent proffered possible rationale for the agency's determination in a memorandum of law. Supreme Court stated: "While counsel for respondents' assertions could be compelling, it was not his role to generate arguments before this Court by doing his own evaluation of petitioner's application." But again, UCS here submitted the affidavit of an individual with firsthand, personal knowledge of the decision-making process and rationale employed at the agency level.
Petitioners' Claims that UCS's Determinations Denying Their Religious Exemption Applications Were Arbitrary and Capricious
According to the Barry affidavit, the Committee adopted and employed the federal legal standard governing an employer's obligation to accommodate an employee's religious beliefs and practices (see Baker v The Home Depot, 445 F.3d 541, 546 [2d Cir 2006]). Mr. Barry avers that, as a general matter, the Committee denied petitioners' applications for one or more of the following reasons: (1) the applicant's stated religious belief was inconsistent with his or her personal practices as reported; (2) the applicant's objection to vaccination was non-religious in nature, i.e. based on personal preference, or doubts regarding the vaccines' necessity or safety; (3) the applicant's failure to identify or describe a religious belief as a basis for the exemption request; and (4) the applicant's failure to provide responsive information. In short, UCS argues, "[p]etitioners' respective failures to show that their objection to the vaccine was based on a sincerely held religious belief constitutes a rational basis for denying their respective exemption requests."
A. Applicants who were denied exemptions on the ground that the petitioners' past and anticipated use of medications tested using fetal cell lines is inconsistent with their stated religious beliefs
According to UCS, the Committee denied 19 of petitioners' applications on the ground that their past and anticipated future use of medications tested on fetal cell lines is inconsistent with their stated religious beliefs (petitioners Ventresca-Cohen, Annunziata, Boback, Brink, Bunce, Cichon, Colón, Coons, Davidson, Dulaney, Fleming, Ingraham, Mercuri, O'Donnell, Ososkalo, Platt, Rahm, Sullivan, and Wilson). In particular, UCS contends that these 19 petitioners, who objected to the vaccine because it was created using fetal cell lines derived from aborted fetuses, do not sincerely hold religious beliefs against COVID-19 vaccination because they reported that either they had used, intended to use in the future, or both, medications that are currently tested on the same fetal cell lines. These petitioners indicated that they had received vaccines as children and had taken the listed medications before they learned that such medications are continually tested using the fetal cell lines. However, they did not unequivocally state that they would abstain from using them in the future.
Fifteen of these petitioners argued that there is a distinction, religiously meaningful to them, between the COVID-19 vaccines developed using fetal cell lines, and the medications listed on the Supplemental form, which were developed and on the market before pharmaceutical companies began to use fetal cell lines for ongoing testing purposes. Given this distinction, they maintain that while the idea of using the COVID-19 vaccines, the very existence of which arose from the use of fetal cell lines, is highly objectionable, they would use, or would consider using, certain medications listed in the Supplemental form if medically necessary and alternatives were unavailable, upon consultation with their physician, clergy, or their own religious conscience. In petitioners' view, such conduct would not be inconsistent with or otherwise undermine their stated religious beliefs.
UCS, on the other hand, seemingly denied many of these applications based on a premise that the applicants could not sincerely hold a religious belief that would entitle them to an exemption from mandatory COVID-19 vaccination if they would be willing to take one or more of the listed medications that have been tested on fetal cells in the future. Upon deep reflection, it is the Court's view that, to the extent UCS relied on such a binary premise, it would be arbitrary and capricious to conclude that these petitioners cannot reasonably ground their objections in sincerely held religious beliefs unless they eschew vaccines and medications developed or tested on fetal cell lines in any and all circumstances, regardless of necessity.
Indisputably, the COVID-19 pandemic presented serious public health challenges to the continued operations of New York's Unified Court System. Whether in houses of worship, at workplaces, or in the courthouses, "[s]temming the spread of COVID-19 is... a compelling interest" (Roman Catholic Diocese of Brooklyn v Cuomo, 141 S.Ct. 63, 67 [2020]; Kane v de Blasio, 19 F4th 152, 169 [2d Cir 2021]). And the overall legality of UCS's policy establishing a vaccination mandate for its employees, subject to religious or medical exemptions, is not in dispute. Moreover, UCS, having allowed religious exemptions from the vaccination mandate, could permissibly implement procedures to assess whether the basis for seeking exemption was a sincerely held religious belief. Such oversight is reasonable and necessary to prevent unsubstantiated religious exemptions from swallowing and undermining the rule of the vaccination mandate itself (see Ford v McGinnis, 352 F.3d 582, 588 [2d Cir 2003] [scrutiny of religious "sincerity is often essential in 'differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud'"], quoting Patrick v LeFevre, 745 F.2d 153, 157 [2d Cir 1984]; cf. F.F. v State, 194 A.D.3d 80, 87 [3d Dept 2021], appeal dismissed and lv denied 37 N.Y.3d 1040 [2021], cert denied 142 S.Ct. 2738 [2022])).
The Courts have repeatedly rejected requests for injunctions and/or dismissed facial challenges to the Unified Court System's COVID-19 vaccination policy (see e.g. Ferrelli v State of NY Unified Court Sys., 2022 U.S. Dist LEXIS 39929, 2022 WL 673863 [ND NY, Mar. 7 2022]; Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State [Unified Ct. Sys.], 73 Misc.3d 874 [Sup Ct, Albany County 2021]; Brignall v NYS Unified Court Sys., index No. E2022-241CV [Sup Ct, Steuben County 2022]; Ferrelli v State of New York, index No. 031506/22 [Sup Ct, Rockland County 2022]; cf. Coughlin v NYS Unified Court Sys., 22-CV-04002 [ED NY 2022]).
UCS's Supplemental form was geared towards developing a basis for reaching a conclusion as to whether petitioners' beliefs are sincerely held and religious in nature (see Kane v de Blasio, 575 F.Supp.3d 435, 442-443 [SD NY 2021], citing United States v Seeger, 380 U.S. 163, 185 [1965] [("W)hile the 'truth' of a belief is not open to question, there remains the significant question whether it is 'truly held.' This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact...."]). The Supplemental form "merely provides factual information about the use of fetal cell lines in creating vaccines, asks applicants questions about their use of other products tested on such cell lines, and provides an opportunity to explain how their beliefs distinguish the vaccines from other products.... [T]his line of questioning does not presuppose the illegitimacy of concerns about use of fetal cell lines; it merely seeks to determine whether such concerns are the applicant's true motivation for seeking an objection" (Ferrelli v State of NY Unified Court Sys., 2022 U.S. Dist LEXIS 39929, *24, 2022 WL 673863, *8 [ND NY, Mar. 7, 2022]).
But, in assessing whether the applicant holds a sincerely held religious belief based on answers provided on the Supplemental form, UCS must tread carefully. "It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds" (Hernandez v Commissioner, 490 U.S. 680, 699 [1989], reh denied 110 S.Ct. 16 [1989] [emphasis added]; accord Kane v de Blasio, 19 F4th at 168; see also Frazee v Illinois Department of Employment Security, 489 U.S. 829, 833 [1989] ["disagreement among sect members" over whether work was prohibited on the Sabbath had not prevented the Court from finding a free exercise violation based on the claimant's "unquestionably... sincere belief that his religion prevented" him from working]).
Given the difficulty of assessing whether an individual's request for exemption or accommodation is based on sincerely held religious beliefs, defendants in various contexts frequently decline to challenge such assertions (see e.g. Ford v McGinnis, 352 F.3d at 588 [DOCCS declined to challenge sincerity of incarcerated plaintiff's religious belief that the Islamic Eid al Fitr feast was "critical to his observance as a practicing Muslim"]; People v Lewis, 68 N.Y.2d 923, 924 [1986] [DOCCS declined to challenge incarcerated plaintiff's avowed Rastafarianism, challenging only whether plaintiff's request to forego an initial haircut upon commitment constituted an undue administrative burden and security risk]; Matter of Miller [McMahon], 252 A.D.2d 156, 159 [4th Dept 1998] [defendant declined to challenge religious sincerity of Amish plaintiff applying for pistol permit, who refused to submit to photograph]; Ware v Valley Stream High School Dist., 75 N.Y.2d 114, 127 [1989] [defendant school district declined to challenge sincerity of religious beliefs of plaintiffs challenging regulation requiring AIDS curriculum for school children]).
The Court has serious concerns about the validity of any premise that one cannot sincerely hold a religious belief requiring abstinence from COVID-19 vaccines that are developed from fetal cell lines, and at the same time be willing to be take medications that have been tested on fetal cell lines under exceptional circumstances. Religious belief systems are often nuanced, and adherents may draw distinctions that may not seem logical to others (see Jolly v Coughlin, 76 F.3d 468, 469 [2d Cir 1996] [concluding that prison officials cannot impinge on sincere religious belief simply by showing that "as an objective matter, the plaintiff's belief is not accurate or logical"]). A survey of recent judicial decisions reveals that objections to COVID-19 vaccination because the vaccines are derived from research on fetal cell lines of aborted fetuses are common (see e.g. Does v Mills, 142 S.Ct. 17, 18-19 [2021, Gorsuch, J., dissenting]; Dr. A v Hochul, 142 S.Ct. 552, 553 [2021, Gorsuch, J., dissenting]; We the Patriots USA, Inc. v Hochul, 17 F4th 266, 272-273 [2021], opn clarified 17 F4th 368 [2d Cir 2021], cert denied 142 S.Ct. 2569 [2022]; Together Emps. v Mass. Gen. Brigham Inc., 19 F4th 1, 4-6 [1st Cir 2021]; Kane v de Blasio, 575 F.Supp.3d 435, 442 [SD NY 2021]; Ferrelli v State of NY Unified Court Sys., 2022 U.S. Dist LEXIS 39929, *8-9, 2022 WL 673863, *3 [ND NY, Mar. 7 2022]; Marciano v de Blasio, No. 21-cv-10752 [JSR], 2022 U.S. Dist LEXIS 41151, 2022 WL 678779 [SD NY 2022]). To parse these individuals' beliefs so finely for complete logical consistency with intended use of similarly developed or tested vaccines, medications, and foods would be, in this Court's view, inappropriate.
Highlighting the Court's concerns are petitioners who indicated on their Supplemental Form that they would continue taking medications critical to their lives or well-being, such as thyroid medication or hydroxychloroquine, and would presumably suffer major health effects if they were to cease taking such medications. Likewise, some petitioners explained that they would take or consider taking the listed medications, after consulting with their physician, clergy and/or conscience, "[o]nly in a life [] or death situation" (NYSCEF Doc No. 68, p 13), if they were "absolutely necessary" (NYSCEF Doc No. 76, p 17; NYSCEF Doc No. 61, p 18; NYSCEF Doc No. 81, p 18), or if there was "no alternative" (NYSCEF Doc No. 69, p 3). To be sure, it may be reasonable to find that an applicant's casual approach to future use of medications developed or tested on fetal cell lines is some evidence that they do not hold a sincere religious belief. But it would be unreasonable to conclude that an objector cannot have a sincerely held religious belief against mandated vaccination and medications tested on fetal cell lines if they concede that they would take one or more of the listed medications, after consultation with their physician, clergy, and/or religious conscience, where critical to their life or well-being.
For example, there is likely to be common agreement that religious adherents can hold a sincere religious belief that requires fasting on holy days, and admit that they might be constrained from strictly adhering to their beliefs about fasting if they were to develop a medical condition that caused them to suffer dire consequences from fasting. Likewise, no one would dispute that religious adherents can hold sincere religious beliefs about which foods they may permissibly ingest, and admit that that might not strictly comply with such beliefs if permissible foods were unavailable, and they needed to seek sustenance for their survival or medical well-being.
These examples illustrate that people can reasonably hold a more nuanced view about religious tenets - one that allows them to weigh their belief that they should not take vaccines or medications developed or tested using fetal cell lines with medical emergencies or life's necessities. Indeed, UCS granted a religious exemption to one of the comparators (Fiet) who asserted that vaccination for COVID-19 with vaccines derived from fetal cell lines is incompatible with his religious beliefs, but he would give "prayerful consideration" to using one or more of the listed medications in life-or-death situations.
Returning to the rationale provided in the Barry affidavit, it appears that the Committee may have denied the exemption applications for at least some of these 19 petitioners on the premise that a sincerely held religious belief must be a principled, all-or-nothing objection to vaccines and medications developed or tested on fetal cell lines, rejecting any notion that they could legitimately hold a more nuanced belief. Because the Court finds any such premise irrational, and because it is not clear whether the premise was decisive for any particular petitioner, the Court remits the determinations regarding all 19 petitioners for further evaluation not inconsistent with this Court's decision (see Matter of Menon v State Dept. of Health, 140 A.D.3d 1428, 1432 [3d Dept 2016]; Office Bldg. Associates, LLC v Empire Zone Designation Bd., 95 A.D.3d 1402, 1406 [3d Dept 2012]).
B. Applicants who objected to COVID-19 vaccination based on personal, philosophical choice and/or their belief in the sanctity and purity of the human body
UCS denied five petitioners' applications on the grounds that their objections to the vaccine were not based on a religious belief - but were instead based on a personal preference not to receive the vaccine, or because of doubts concerning the vaccines' medical necessity or safety - and/or because they failed to provide information demonstrating that they abstained from other medicines, medical procedures, vaccines, and foods based on their stated religious reasons (petitioners Asencsio, Buss, Cheresnowsky, Dantes, and McCormick). These petitioners explained the role of religion in their lives and grounded their exemption requests in their beliefs in the sanctity of the human body, faith in their natural God-given immunity, and an obligation to follow their own personal convictions, guided by prayerful consideration.
There is no reason to disbelieve petitioners' averments that they are devoutly religious and that their faith is at the forefront of any decisions they make in life. But UCS denied these petitioners' applications, even where the applicant demonstrated deeply held religious beliefs, because the applicant did not demonstrate that such religious beliefs served as the basis for the individual's decision to forego receiving the COVID-19 vaccine. Rather, it appeared to be a personal choice, made by a religious individual. The Court acknowledges that the line between religious and personal, philosophical choice is often murky (see Frazee v Illinois Department of Employment Security, 489 U.S. 829, 833 [1989] ["Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held."]). But the distinction is commonly drawn. And although reasonable people may disagree, the Court concludes that UCS's determinations with respect to these petitioners is not arbitrary and capricious.
Petitioners compare their applications to the applications of six employees whose religious exemption requests were granted in arguing that UCS's determination denying their requests was irrational. To be sure, there are similarities among the applications included in this record: many cite or quote scripture and discuss a personal relationship with a church and/or deity. But, upon review of all applications submitted, applications UCS granted differ in material respects from those it denied: the employees whose applications were granted provided a clear religious basis for their objections to the vaccine, and they averred that they intend to act in the future consistently with their stated religious beliefs. Whereas these petitioners, in responding to the Supplemental inquiry, either denied abstaining from other treatments and procedures, or responded broadly that they, for example, "abstain from all medicine, medical treatment, and procedures until exhausting any and all other efforts to improve [their] health naturally" (NYSCEF Doc No. 74, p 35) or that medicines, medical procedures and treatments are "prayed upon and taken or refused as God instructs" (NYSCEF Doc No. 66, p 16).
Upon careful review of these petitioners' applications, and due deliberation thereon, the Court cannot conclude that UCS's determinations with regard to these five petitioners are so irrational as to be arbitrary and capricious.
C. Applicants who failed to identify a particular religious belief or tenet or to comply with UCS's requests for further information
UCS denied two applications because the petitioners failed to identify a particular religious belief or tenet forbidding them from receiving the vaccine (petitioners Hawley and Pratt). In their applications, these petitioners merely stated: "I certify that receiving this vaccination conflicts with my religion." It was not irrational for UCS to deny these applications based on such a nonspecific, conclusory averment.
And UCS denied the applications of four other petitioners for failure to meaningfully respond to their request for further information (petitioners Hall, Herrera, Mercuri, and Pashoukas). As discussed above, UCS could permissibly implement procedures to assess whether the basis for seeking exemption was a sincerely held religious belief. And UCS's Supplemental form was geared towards developing a basis for reaching a conclusion as to whether petitioners' beliefs are sincerely held and religious in nature (s ee Kane v de Blasio, 575 F.Supp.3d 435, 442-443 [SD NY 2021]). The Supplemental form "merely provides factual information about the use of fetal cell lines in creating vaccines, asks applicants questions about their use of other products tested on such cell lines, and provides an opportunity to explain how their beliefs distinguish the vaccines from other products.... [T]his line of questioning does not presuppose the illegitimacy of concerns about use of fetal cell lines; it merely seeks to determine whether such concerns are the applicant's true motivation for seeking an objection" (Ferrelli v State of NY Unified Court Sys., 2022 U.S. Dist LEXIS 39929, *24, 2022 WL 673863, *8 [ND NY, Mar. 7 2022]). Thus, where applicants refused to complete the Supplemental form or provide further, responsive information, it was not arbitrary and capricious for UCS to deny these petitioners' requests for exemptions (see id. fn 9).
Petitioner Hawley's Challenge to UCS's Denial of Her Religious Exemption Request Is Alternatively Barred by the Statute of Limitations.
"An article 78 proceeding must be commenced within four months 'after the determination to be reviewed becomes final and binding upon the petitioner'" (Matter of Gillard v Annucci, 175 A.D.3d 768, 768 [3d Dept 2019], lv denied 34 N.Y.3d 907 [2020], quoting CPLR 217 [1]). "A determination generally becomes binding when the aggrieved party is notified" (Matter of Village of Westbury v Department of Transp. of State of NY, 75 N.Y.2d 62, 72 [1989] [internal quotation marks and citations omitted]; accord Matter of Pinney v Van Houten, 168 A.D.3d 1293, 1294 [3d Dept 2019], lv dismissed and lv denied 33 N.Y.3d 998 [3d Dept 2019]; see Matter of Colavito v New York State Comptroller, 130 A.D.3d 1221, 1222 [3d Dept 2015]). A CPLR article 78 proceeding such as this "is deemed commenced for statute of limitations purposes on the date on which the clerk of the court... receives the petition in valid form" (Matter of Loper v Selsky, 26 A.D.3d 653, 654 [3d Dept 2006]; see Matter of Grant v Senkowski, 95 N.Y.2d 605, 607-610 [2001]; Matter of Stevens v Bell, 197 A.D.3d 1474, 1474 [3d Dept 2021]).
On November 9, 2021, UCS informed petitioner Hawley, by email with attached letter, that her religious exemption request had been denied. In the letter the Committee informed petitioner Hawley that her application had been considered and denied and that she must submit proof of having received the first dose of a COVID-19 vaccine by November 23, 2021. The four-month statute of limitations began to run upon petitioner Hawley's receipt of UCS's final determination denying her religious exemption by email on November 9, 2021, and it expired on March 9, 2022. Petitioners commenced this CPLR article 78 proceeding on March 21, 2022. Because petitioners commenced this proceeding beyond the four-month statute of limitations, petitioner Hawley's claims are alternatively barred by the statute of limitations.
Accordingly, it is
Ordered that the petition is granted to the extent that, with respect to 19 petitioners identified above, the matter is remitted to UCS for further determinations not inconsistent with this decision, and the petition is otherwise denied.
This constitutes the Decision and Judgment of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for petitioners shall promptly serve notice of entry on all other parties entitled to such notice.