14‐2156‐cv
Phillips v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: January 5, 2015 Decided: January 7, 2015)
Docket No. 14‐2156‐cv
________________
NICOLE PHILLIPS, individually and on behalf of B.P. and S.P., minors,
DINA CHECK, on behalf of minor M.C.,
FABIAN MENDOZA‐VACA, individually and on behalf of M.M. and V.M., minors,
Plaintiffs‐Appellants,
— v. —
CITY OF NEW YORK, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney
General, State of New York, DR. NIRAV R. SHAH, in his official capacity as
Commissioner, New York State Department of Health, NEW YORK CITY
DEPARTMENT OF EDUCATION,
Defendants‐Appellees.*
*
The Clerk of Court is respectfully directed to amend the official caption in
this case to conform to the caption above.
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B e f o r e:
LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge.**
__________________
Plaintiffs‐appellants challenge on constitutional grounds New York State’s
requirement that all children be vaccinated in order to attend public school.
Plaintiffs‐appellants argue that the statutory vaccination requirement, which is
subject to medical and religious exemptions, violates their substantive due
process rights, the Free Exercise Clause of the First Amendment, the Equal
Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and
both state and municipal law. On the same grounds, plaintiffs‐appellants argue
that a state regulation permitting state officials to temporarily exclude students
who are exempted from the vaccination requirement from school during an
outbreak of a vaccine‐preventable disease is unconstitutional. The district court
concluded that the statute and regulation are constitutional. We agree and
therefore AFFIRM.
**
The Honorable Edward R. Korman, of the United States District Court for
the Eastern District of New York, sitting by designation.
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PATRICIA FINN, Patricia Finn, Attorney, P.C., Piermont, New
York, for Plaintiffs‐Appellants.
JAMES ANDREW KENT, Assistant Solicitor General (Steven C. Wu,
Deputy Solicitor General, on the brief) on behalf of Barbara D.
Underwood, Solicitor General, for State Defendants‐Appellees.
JANE L. GORDON on behalf of Zachary W. Carter, Corporation
Counsel of the City of New York, for Municipal Defendants‐
Appellees.
PER CURIAM:
Plaintiffs brought this action challenging on constitutional grounds New
York State’s requirement that all children be vaccinated in order to attend public
school. Plaintiffs argued that the statutory vaccination requirement, which is
subject to medical and religious exemptions, violates their substantive due
process rights, the Free Exercise Clause of the First Amendment, the Equal
Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and
both state and municipal law. On the same grounds, plaintiffs argued that a state
regulation permitting school officials to temporarily exclude from school
students who are exempted from the vaccination requirement during an
outbreak of a vaccine‐preventable disease is unconstitutional. Defendants moved
3
to dismiss or for summary judgment. The district court (William F. Kuntz II,
Judge) granted defendants’ motions. Because we conclude that the statute and
regulation are a constitutionally permissible exercise of the State’s police power
and do not infringe on the free exercise of religion, and we determine that
plaintiffs’ remaining arguments are either meritless or waived, we affirm.
BACKGROUND
New York requires that students in the State’s public schools be
immunized against various vaccine‐preventable illnesses. The New York Public
Health Law provides that “[n]o principal, teacher, owner or person in charge of a
school shall permit any child to be admitted to such school, or to attend such
school, in excess of fourteen days” without a certificate of immunization. N.Y.
Pub. Health Law § 2164(7)(a). The statute provides two exemptions from the
immunization mandate. First, a medical exemption is available “[i]f any
physician licensed to practice medicine in this state certifies that such
immunization may be detrimental to a child’s health.” Id. § 2164(8). Second, the
a religious exemption is available for “children whose parent, parents, or
guardian hold genuine and sincere religious beliefs which are contrary to the
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practices herein required.” Id. § 2164(9). The State provides multiple layers of
review for parents if either of these exemptions is denied.
Plaintiffs Nicole Phillips and Fabian Mendoza‐Vaca, who are Catholic,
received religious exemptions for their children. In November 2011 and January
2012, however, the Phillips and Mendoza‐Vaca children were excluded from
school when a fellow student was diagnosed with chicken pox, pursuant to a
state regulation that provides, “in the event of an outbreak . . . of a vaccine‐
preventable disease in a school, the commissioner, or his or her designee, . . . may
order the appropriate school officials to exclude from attendance” those students
who have received exemptions from mandatory vaccination. 10 N.Y.C.R.R. § 66‐
1.10.
Plaintiff Dina Check applied for a religious exemption for her daughter,
M.C.1 After asking Check to clarify her basis for seeking the exemption, a
Department of Education (“DOE”) official ultimately denied the exemption,
finding that Check’s objections to vaccinating M.C. were not based on genuine
1
According to plaintiffs, M.C. had a religious exemption while attending a
private pre‐school, but was required to reapply when she entered the public
school system.
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and sincere religious beliefs.2 Check then brought this lawsuit seeking a
preliminary injunction to compel the DOE to allow M.C. to attend school
unvaccinated.
The district court (Sandra L. Townes, Judge) referred the preliminary
injunction application to Magistrate Judge Lois Bloom, who held a hearing at
which Check testified regarding the purported religious basis for her objections
to vaccines.3 Check testified that she is Catholic and stated, “How I treat my
daughter’s health and her well‐being is strictly by the word of God.” (Joint
App’x 136.) Check also testified, however, that she believed that vaccination
“could hurt my daughter. It could kill her. It could put her into anaphylactic
shock. It could cause any number of things.” (Id. at 146.) On cross‐examination,
Check testified that she did not know of any tenets of Catholicism that prohibited
vaccinations. She also detailed several adverse reactions that M.C. had had to
2
Check appealed this denial, and, after an interview with a different DOE
official, her appeal was dismissed. Although an additional appeal to the
Commissioner of Education was available, Check chose not to appeal and instead
commenced this litigation.
3
M.C. had previously been denied a medical exemption, though Check
stated during the preliminary injunction hearing that she never applied for a
medical exemption and that the application submitted on her behalf was
submitted in error.
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vaccinations before Check determined not to subject her to any further
inoculation, and stated that these bad reactions led Check to ask God for
guidance and protection.
The Magistrate Judge issued a Report and Recommendation
recommending that the request for a preliminary injunction be denied. She
found that Check’s testimony demonstrated that her views on vaccination were
primarily health‐related and did not constitute a genuine and sincere religious
belief. The Magistrate Judge noted especially that “plaintiff’s testimony that she
did not adopt her views opposing vaccination until she believed that
immunization jeopardized her daughter’s health is compelling evidence that
plaintiff’s refusal to immunize her child is based on medical considerations and
not religious beliefs.” (Id. at 211.) The district court adopted the Report and
Recommendation and denied injunctive relief.4
4
Despite Check’s disavowal of the medical exemption application, after the
Magistrate Judge recommended that the preliminary injunction be denied,
plaintiffs sought a second preliminary injunction based on the medical
exemption. The Magistrate Judge issued a second Report and Recommendation
recommending that this request for a preliminary injunction be denied and the
district court issued an order adopting her recommendation. As discussed
further at note 6, infra, plaintiffs do not challenge this order on appeal.
7
Check’s case was subsequently consolidated with the Phillips and
Mendoza‐Vaca cases before Judge Kuntz. Plaintiffs thereafter jointly filed an
amended complaint, alleging that the State’s mandatory vaccination requirement
and the regulation permitting temporary exclusion of exempted schoolchildren
during a disease outbreak were unconstitutional. Specifically, plaintiffs alleged
that the statute and regulation violated the Free Exercise Clause of the First
Amendment, their rights to substantive due process under the Fourteenth
Amendment, the Ninth Amendment, the Equal Protection Clause, and state and
municipal law. The municipal defendants moved to dismiss or for summary
judgment, and the State defendants moved to dismiss. The district court granted
the motions on June 5, 2014. Phillips v. City of New York, Nos. 12‐cv‐98
(WFK)(LB), 12‐cv‐237 (WFK)(LB), 13‐cv‐791 (WFK)(LB), 2014 WL 2547584
(E.D.N.Y. June 5, 2014). Plaintiffs filed their Notice of Appeal five days later, on
June 10, 2014. Nine days after that, plaintiffs moved for reconsideration in the
district court. The district court denied the motion, holding that because
plaintiffs had already filed their Notice of Appeal, it no longer had jurisdiction.
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DISCUSSION
We review de novo the district court’s grant of a motion to dismiss,
accepting as true all facts alleged in the complaint and drawing all reasonable
inferences in favor of the plaintiff. Kassner v. 2nd Ave. Delicatessen Inc., 496
F.3d 229, 237 (2d Cir. 2007).
I. Substantive Due Process
Plaintiffs argue that New York’s mandatory vaccination requirement
violates substantive due process. This argument is foreclosed by the Supreme
Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11
(1905). In that case, the plaintiff challenged Massachusetts’s compulsory
vaccination law under the Fourteenth Amendment. The Supreme Court held
that mandatory vaccination was within the State’s police power. Id. at 25‐27; see
Zucht v. King, 260 U.S. 174, 176 (1922) (“Jacobson . . . settled that it is within the
police power of a state to provide for compulsory vaccination.”). The Court
rejected the claim that the individual liberty guaranteed by the Constitution
overcame the State’s judgment that mandatory vaccination was in the interest of
the population as a whole. Jacobson, 197 U.S. at 38. Plaintiffs argue that a
growing body of scientific evidence demonstrates that vaccines cause more harm
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to society than good, but as Jacobson made clear, that is a determination for the
legislature, not the individual objectors. See id. at 37‐38.5 Plaintiffs’ substantive
due process challenge to the mandatory vaccination regime is therefore no more
compelling than Jacobson’s was more than a century ago. See Caviezel v. Great
Neck Pub. Schs., 500 F. App’x 16, 19 (2d Cir. 2012) (summary order) (rejecting
substantive due process challenge to vaccination mandate based on Jacobson).
II. Free Exercise of Religion
Plaintiffs next argue that the temporary exclusion from school of the
Phillips and Mendoza‐Vaca children during the chicken pox outbreak
unconstitutionally burdens their free exercise of religion.6 Jacobson did not
5
Plaintiffs argue that Jacobson requires that strict scrutiny be applied to
immunization mandates. Even assuming that Jacobson does demand this level of
scrutiny, which no court appears ever to have held, Jacobson addressed a law
mandating that all persons over age twenty‐one be vaccinated for small pox and
the criminal prosecution of the plaintiff for refusing to submit to vaccination. 197
U.S. at 12. Here, New Yorkʹs mandate requires only that children who are not
otherwise exempted be vaccinated in order to attend school. Because “there is no
substantive due process right to public education,” Bryant v. N.Y.S. Educ. Dep’t,
692 F.3d 202, 217 (2d Cir. 2012), plaintiffs’ substantive due process claim fails
even under their reading of Jacobson.
6
Check also claims that her free exercise rights were violated. However,
the district court adopted the Magistrate Judge’s finding that Check’s objections
to vaccinations were not based on religious beliefs, and plaintiffs did not
designate either of the district court’s orders adopting the Magistrate Judge’s
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address the free exercise of religion because, at the time it was decided, the Free
Exercise Clause of the First Amendment had not yet been held to bind the states.
See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Therefore, Jacobson does
not specifically control Phillips’s and Mendoza‐Vaca’s free exercise claim. The
Supreme Court has stated in persuasive dictum, however, that a parent “cannot
claim freedom from compulsory vaccination for the child more than for himself
on religious grounds. The right to practice religion freely does not include liberty
to expose the community or the child to communicable disease or the latter to ill
health or death.” Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944). That
dictum is consonant with the Court’s and our precedents holding that “a law that
is neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a
particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531 (1993); accord, Leebaert v. Harrington, 332 F.3d 134,
Reports and Recommendations in their Notice of Appeal. Therefore, we lack
jurisdiction to review the Magistrate Judge’s factfinding. See Fed. R. App. P.
3(c)(1)(B); New Phone Co., Inc. v. City of New York, 498 F.3d 127, 131 (2d Cir.
2007). Because Check’s objections to the statute are not religious in nature, she
lacks standing to challenge the mandate on free exercise grounds. See Mason v.
Gen. Brown Cent. Sch. Dist., 851 F.2d 47, 54 (2d Cir. 1988).
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143‐44 (2d Cir. 2003) (holding that parental claims of free exercise of religion are
governed by rational basis test). Accordingly, we agree with the Fourth Circuit,
following the reasoning of Jacobson and Prince, that mandatory vaccination as a
condition for admission to school does not violate the Free Exercise Clause. See
Workman v. Mingo County Bd. of Educ., 419 F. App’x 348, 353‐54 (4th Cir. 2011)
(unpublished).
New York could constitutionally require that all children be vaccinated in
order to attend public school. New York law goes beyond what the Constitution
requires by allowing an exemption for parents with genuine and sincere religious
beliefs. Because the State could bar Phillips’s and Mendoza‐Vaca’s children from
school altogether, a fortiori, the State’s more limited exclusion during an outbreak
of a vaccine‐preventable disease is clearly constitutional.
III. Equal Protection
Plaintiffs argue that the mandatory vaccination provision violates their
rights under the Equal Protection Clause. To the extent that plaintiffs are
claiming discrimination against Catholics, that argument plainly fails because
Phillips and Mendoza‐Vaca are both Catholic and received religious exemptions.
Plaintiffs alternatively argue that Check was treated differently than her
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similarly‐situated co‐plaintiffs. But, as discussed above, plaintiffs failed to
challenge the district court’s finding that Check’s views on vaccines were not
based on sincere religious beliefs. Plaintiffs have put nothing in the record to
suggest that Phillips’s and Mendoza‐Vaca’s religious beliefs are similar to
Check’s. Plaintiffs therefore fail adequately to allege an equal protection
violation.
IV. Ninth Amendment
Plaintiffs finally seek succor in the Ninth Amendment. But, we have held,
“[t]he Ninth Amendment is not an independent source of individual rights.”
Jenkins v. C.I.R., 483 F.3d 90, 92 (2d Cir. 2007). Because plaintiffs fail plausibly to
allege a violation of any other constitutional right, their effort to recast their
unsuccessful claims as a violation of the Ninth Amendment also fails. See id. at
93.7
7
Because all of plaintiffs’ federal claims fail, the district court properly
declined to exercise supplemental jurisdiction over their state and municipal law
claims. See 28 U.S.C. § 1367; Valencia ex rel. Franco v. Lee, 316 F.3d 299, 304‐05
(2d Cir. 2003).
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V. Claims in Plaintiffs’ Motion for Reconsideration
Plaintiffs also raise numerous arguments on appeal based on a deposition
of DOE official Julia Sykes and other documents that they obtained in discovery.
Those arguments were raised for the first time in plaintiffs’ motion for
reconsideration and therefore were not properly presented to the district court.
Accordingly, they are waived. See Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry.
Co., 762 F.3d 165, 188 (2d Cir. 2014) (declining to consider arguments raised for
the first time in motion for reconsideration where no reason exists to excuse
untimeliness).
CONCLUSION
For the foregoing reasons, the order of the district court is
AFFIRMED.
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