20-3989-cv Palmer v. Amazon

In the United States Court of Appeals For the Second Circuit

August Term, 2020 No. 20-3989-cv

DERRICK PALMER, KENDIA MESIDOR, BENITA ROUSE, ALEXANDER ROUSE, BARBARA CHANDLER, LUIS PELLOT-CHANDLER, DEASAHNI BERNARD, Plaintiffs-Appellants,

v.

AMAZON.COM, INC., AMAZON.COM SERVICES, LLC, Defendants-Appellees.

On Appeal from a Judgment of the United States District Court for the Eastern District of New York.

ARGUED: MAY 19, 2021 DECIDED: OCTOBER 18, 2022

Before: JACOBS, CHIN, and NARDINI, Circuit Judges.

This case involves claims brought by workers at Amazon’s JFK8 fulfillment center and members of the workers’ households in connection with the COVID-19 policies, practices, and procedures at JFK8. In their amended complaint Plaintiffs allege causes of action for public nuisance, breach of the duty to protect the health and safety of employees under New York Labor Law (“NYLL”) § 200, violation of NYLL § 191 for failure to pay, on time and in full, COVID-19 sick leave under New York’s COVID-19 sick leave law, and injunctive relief against future violations of NYLL § 191. The United States District Court for the Eastern District of New York (Brian M. Cogan, Judge) dismissed Plaintiffs’ amended complaint, relying on the doctrine of primary jurisdiction, as well as alternative grounds, to dispose of the public nuisance and NYLL § 200 claims, and dismissing Plaintiffs’ § 191 claim for failure to state a claim for relief based on COVID-19 sick leave payments not falling within § 191’s definition of “wages.” Plaintiffs now appeal. First, we reject Amazon’s contention that we should partially dismiss this appeal as moot. Second, we agree with Plaintiffs that the district court wrongly applied the primary jurisdiction doctrine to their public nuisance and NYLL § 200 claims. Ultimately, however, only their § 200 claim survives. Accordingly, we hold: (1) Plaintiffs’ public nuisance and NYLL § 200 claims are not moot; (2) the doctrine of primary jurisdiction does not apply to Plaintiffs’ public nuisance or NYLL § 200 claims; (3) Plaintiffs fail to state a claim for public nuisance under New York law because they do not allege a special injury; (4) Section 11 of the New York Workers’ Compensation Law does not preclude injunctive relief under NYLL § 200; and (5) COVID-19 sick leave payments are not “wages” under NYLL § 191. We therefore AFFIRM the district court’s dismissal of Plaintiffs’ public nuisance and NYLL § 191 claims; and we VACATE the district court’s dismissal of Plaintiffs’ NYLL § 200 claim and REMAND to the district court for further proceedings on that claim.

Judge Chin concurs in part and dissents in part in a separate opinion.

2 KARLA GILBRIDE, PUBLIC JUSTICE, Washington, DC (Emily Villano, Public Justice, Washington, DC, Juno Turner, David H. Seligman, and Valerie Collins, Towards Justice, Denver, CO, Beth Terrell, Terrell Marshall Law Group PLLC, Seattle, WA, on the brief), for Plaintiffs-Appellants.

JASON C. SCHWARTZ, Gibson, Dunn & Crutcher LLP, Washington, DC (Lucas C. Townsend, Lochlan F. Shelfer, Gibson, Dunn & Crutcher LLP, Washington, DC, Avi Weitzman, Zainab N. Ahmad, Gibson, Dunn & Crutcher LLP, New York, NY, on the brief), for Defendants-Appellees.

WILLIAM J. NARDINI, Circuit Judge:

Workers at Amazon’s JFK8 fulfillment center and members of

their households (together, “Plaintiffs”) challenge workplace COVID-

19 policies, practices, and procedures at JFK8. Their suit against

Amazon.com, Inc. and Amazon.com Services LLC (together,

“Amazon”) in the United States District Court for the Eastern District

of New York (Brian M. Cogan, Judge) asserts causes of action under

3 New York law for public nuisance, breach of the duty to protect the

health and safety of employees under New York Labor Law

(“NYLL”) § 200, violation of NYLL § 191 for failure to pay, on time

and in full, COVID-19 sick leave under New York’s COVID-19 sick

leave law, and injunctive relief against future violations of NYLL

§ 191. Amazon moved to dismiss Plaintiffs’ amended complaint. In

a memorandum decision and order filed on November 2, 2020, the

district court granted Amazon’s motion. On November 3, 2020, the

district court entered judgment dismissing Plaintiffs’ amended

complaint.

The district court dismissed Plaintiffs’ public nuisance and

NYLL § 200 claims without prejudice under the primary jurisdiction

doctrine, concluding that the questions before the court turned on

factual issues requiring the technical and policy expertise of the

Occupational Safety and Health Administration (“OSHA”). In the

alternative, the district court concluded that Plaintiffs failed to allege

4 the special injury required to state a claim for public nuisance; that

New York’s Workers’ Compensation Law preempts suit under NYLL

§ 200 for injunctive relief for past harm; and that Plaintiffs failed to

allege a cognizable injury under NYLL § 200 based on the threat of

future harm. The district court then dismissed with prejudice

Plaintiffs’ NYLL § 191 claims, concluding that COVID-19 leave

payments are not “wages” as defined by § 191.

Plaintiffs now appeal the district court’s dismissal. This appeal

presents five key questions: (1) whether Plaintiffs’ public nuisance

and NYLL § 200 claims are moot because they are premised on New

York Forward, a state-issued plan with industry-specific guidance for

businesses that has since been rescinded; (2) whether the district court

correctly applied the primary jurisdiction doctrine in dismissing

Plaintiffs’ state law claims in deference to OSHA; (3) whether

Plaintiffs plausibly plead a special injury to support a public nuisance

claim against Amazon; (4) whether the New York Workers’

5 Compensation Law bars claims for injunctive relief under NYLL

§ 200; and (5) whether NYLL § 191 establishes how and when COVID-

19 sick leave pay must be paid.

First, we hold that Plaintiffs’ public nuisance and NYLL § 200

claims are not moot. These claims continue to present a live

controversy because they are not based solely on since-rescinded

guidance associated with the New York Forward plan. Second, we

hold that the doctrine of primary jurisdiction does not apply to

Plaintiffs’ public nuisance and NYLL § 200 claims. The issues before

us—whether Amazon created a public nuisance and whether

Amazon has breached its duty owed to Plaintiffs under NYLL § 200—

turn on questions of state tort law that are within the conventional

experience of judges. Although it is certainly within OSHA’s

competence to evaluate and create workplace health and safety

standards, OSHA’s expertise would not be a material aid here; the

issues before us are of a legal, not factual, nature and do not require

6 the kind of highly factual inquiry that would typically be aided by

OSHA’s expertise. Furthermore, OSHA has not promulgated the

kind of cross-industry COVID-19 workplace safety standards that

might be applicable here. Third, we hold that although Plaintiffs may

plead a harm that is different in degree from the community at large,

they fail to plead a harm that is different in kind, thereby failing to

allege the special injury required to state a claim for public nuisance

under New York law. Fourth, we hold that New York’s Workers’

Compensation Law is concerned only with claims for monetary relief

and leaves open claims against employers for injunctive relief under

NYLL § 200. Lastly, we hold that NYLL § 191 determines the pay

frequency for “wages” but not “benefits or supplemental wages.”

Because COVID-19 leave payments are not “wages” as defined by

NYLL § 191, Plaintiffs do not have a private cause of action under

§ 191 for Amazon’s alleged failure to comply with New York’s

COVID-19 sick leave law.

7 Accordingly, we AFFIRM the district court’s dismissal of

Plaintiffs’ public nuisance claim and NYLL § 191 claims for damages

and injunctive relief; and we VACATE the district court’s dismissal of

Plaintiffs’ NYLL § 200 claim seeking a declaratory judgment and

injunctive relief and REMAND to the district court for further

proceedings on this claim.

I. Background

We assume the following facts, which are taken from Plaintiffs’

amended complaint, to be true for the purposes of this appeal.

Kolbasyuk v. Cap. Mgmt. Servs., LP,

, 238 n.1, 239 (2d Cir.

2019).

A. Amazon’s Operations at JFK8

The JFK8 fulfillment center (“JFK8”) is a facility operated by

Amazon in Staten Island, New York. JFK8 covers approximately

840,000 square feet and runs twenty-four hours per day, seven days

per week. On average, JFK8 employs 3,500 workers at any given time.

8 During peak seasons—the period around Amazon Prime Day in July

and the months leading up to Christmas—the workforce expands to

approximately 5,000. During the course of the pandemic, Amazon’s

national workforce expanded. As of April 2020, Amazon had hired

175,000 more workers to account for increased demand for online

shopping and product delivery.

Amazon tracks its employees’ activity through devices workers

use to scan items and packages. It uses this information to determine

whether employees are on task and to calculate an employee’s total

time off task (“TOT”) for each shift. An employee’s TOT in a shift is

not to exceed thirty minutes. TOT greater than thirty minutes results

in a written warning; TOT greater than sixty minutes results in a final

written warning; and TOT greater than 120 minutes results in an

automatic termination. Employees accumulate TOT during

bathroom breaks. An employee’s supervisor must re-code certain

TOT activities to prevent them from contributing to an employee’s

9 total TOT. Supervisors cannot re-code TOT for bathroom breaks, but

they can decide whether to discipline an employee for exceeding TOT

limits because of those breaks.

B. New York’s response to the COVID-19 pandemic

On March 1, 2020, New York announced its first confirmed case

of COVID-19. On March 20, 2020, then-New York Governor Andrew

Cuomo issued the New York State on PAUSE Executive Order. Exec.

Order No. 202.6 (N.Y. Mar. 22, 2020). The Order permitted essential

businesses—those providing products or services required to

maintain the health, safety, and welfare of New Yorkers—to remain

open. Amazon was deemed an essential business.

In May 2020, New York began a phased reopening of non-

essential businesses under the New York Forward plan. The plan

provided detailed, industry-specific guidance for essential businesses

and non-essential businesses that were permitted to reopen. The

guidance outlined “minimum requirements” businesses needed to

10 follow to remain open. JFK8 was subject to the New York Forward

Interim Guidance for the Wholesale Trade Sector.

In parallel to the Governor’s executive action, on March 18,

2020, the New York legislature responded to the pandemic by

enacting a COVID-19 sick leave law (the “Leave Law”). See 2020 N.Y.

Sess. Laws ch. 25 (McKinney). The Leave Law requires employers to

pay sick leave to employees who are “subject to a mandatory or

precautionary order of quarantine or isolation issued by the state of

New York, the department of health, local board of health, or any

governmental entity duly authorized to issue such order to COVID-

19.”

§ 1.1(a). The amount of sick leave an employer must provide

varies based on its number of employees. Employers with a

workforce of one hundred or more must give at least fourteen days of

paid sick leave during any mandatory or precautionary order of

quarantine or isolation. Id. § 1.1(c).

11 C. Plaintiffs’ allegations

Plaintiffs are warehouse workers at JFK8 and members of the

employees’ households. The employee plaintiffs are Derrick Palmer,

Benita Rouse, Barbara Chandler, and Deasahni Bernard. Their roles

all involve working close to other team members, and most of their

roles include touching items that other workers have handled. The

remaining plaintiffs (together, the “Non-Employee Plaintiffs”) live in

the households of the employee plaintiffs: Kendia Mesidor is in a

relationship with Derrick Palmer, and Alexander Rouse and Luis

Pellot-Chandler are the children of Benita Rouse and Barbara

Chandler, respectively. Chandler and Bernard contracted COVID-19

while employed at JFK8. Members of Chandler’s household

experienced symptoms of COVID-19, including her cousin who died

in April 2020.

As the pandemic hit New York in spring 2020, Plaintiffs became

concerned that Amazon was disregarding federal and state

12 guidance—namely, the New York Forward plan, the Leave Law, and

guidance from the federal government’s Centers for Disease Control

and Prevention (“CDC”)—and thereby creating an unsafe workplace

during a global pandemic.

Plaintiffs allege that Amazon deters workers from social

distancing, washing hands, and disinfecting workstations. Plaintiffs

point to a primary root cause: TOT requirements. Although Amazon

purportedly suspended TOT tracking requirements and productivity

feedback in March 2020, Plaintiffs allege that Amazon did not inform

workers of this change until an announcement on July 13, 2020.

According to Plaintiffs, even after Amazon’s July announcement,

managers continued to post TOT rate goals around the JFK8 facility

and to encourage workers to meet those goals. Plaintiffs assert that

Amazon’s mixed messages and lack of communication concerning

TOT and rate policies discourage workers from leaving their

workstations to wash their hands and from taking time to disinfect

13 their work area. Although workers in some departments can re-code

their time to indicate that they are “off task” to address a dangerous

condition, equipment malfunction, or injury, Amazon does not

provide the same re-coding mechanism for employees breaking to

wash hands, social distance, or sanitize workstations.

Next, Plaintiffs allege that Amazon failed to implement any

policy regarding social distancing. Only two of the breakrooms at

JFK8 are air-conditioned, concentrating workers in those rooms

during the hotter spring and summer months. Moreover, Amazon

changed its break policies, shifting from two twenty-minute breaks

plus lunch per shift to one thirty-five-minute break plus lunch per

shift. Plaintiffs allege this change thwarts workers’ ability to social

distance because more employees are in breakrooms, bathrooms, and

hallways at a given time.

Plaintiffs further allege that Amazon makes COVID-19 sick

leave inaccessible and fails to pay workers on time and in full under

14 the Leave Law, which encourages workers to forgo taking leave and

attend work while sick. A JFK8 worker who has symptoms of

COVID-19 or who is exposed to someone with the virus is required to

communicate with Amazon’s human resources (“HR”) team before

taking sick leave pursuant to the Leave Law. The process for learning

whether the employee can stay home is lengthy and confusing.

Plaintiffs recount situations in which they repeatedly called the HR

team but were unable to speak with one of its team members. Once

an employee finally learns that they must quarantine, Amazon fails

to timely provide the employee with full payment of COVID-19 sick

pay.

Plaintiffs also allege that Amazon’s handling of contact-tracing

fails to adequately track employees who test positive for COVID-19

and the coworkers with whom they came into close contact. Amazon

does not track the symptoms of workers who report exposure to

COVID-19, and it allegedly discourages workers from informing their

15 colleagues that they tested positive for the virus. Amazon also does

not ask COVID-19-positive employees with whom they have come

into close contact at JFK8. Amazon relies solely on surveillance

technology to make these contact determinations, which Plaintiffs

argue is inadequate.

Lastly, Plaintiffs allege that Amazon fails to deep clean JFK8

and close the facility, whether in whole or in part, after receiving

confirmation that a worker tested positive for COVID-19.

D. District court proceedings

On June 3, 2020, Plaintiffs filed a complaint in the U.S. District

Court for the Eastern District of New York asserting claims for public

nuisance, breach of duty under NYLL § 200, and violations of NYLL

§ 191 for failure to pay, on time and in full, COVID-19 sick leave.

Plaintiffs also filed a motion for a preliminary injunction, which they

subsequently withdrew after Amazon’s announcement on July 13,

2020, concerning changes to productivity policies.

On July 28, 2020, Plaintiffs filed an amended four-count

16 complaint expanding their NYLL § 191 claims into a statewide class

action and adding an additional named Plaintiff. In Count I, Plaintiffs

assert that Amazon is creating a public nuisance by failing to comply

with minimum basic health and safety standards at JFK8. Plaintiffs

seek injunctive relief and a declaratory judgment under

. In Count II, Plaintiffs allege that Amazon is breaching its duty

to protect the health and safety of its employees under NYLL § 200,

seeking injunctive relief and a declaratory judgment under

. In Count III, Plaintiffs seek damages for Amazon’s alleged

failure to timely pay earned COVID-19 sick leave under NYLL § 191.

In Count IV, Plaintiffs seek to enjoin Amazon from future failures to

pay earned COVID-19 sick leave on time under NYLL § 191.

On August 11, 2020, Amazon filed a motion to dismiss the

amended complaint under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6). The district court granted Amazon’s motion on

November 2, 2020, and entered judgment the following day. Under

17 the doctrine of primary jurisdiction, the district court dismissed,

without prejudice, Plaintiffs’ public nuisance and NYLL § 200 claims.

The court concluded that because the relief Plaintiffs seek “involves

detailed aspects of how Amazon regulates its workplace,” Plaintiffs’

claims turned “on factual issues requiring [OSHA’s] technical and

policy expertise.” App’x at 137. The risk of inconsistent rulings

absent agency deferral and the advantages of applying the doctrine

also tipped in favor of invoking primary jurisdiction. In the

alternative, the district court concluded that Plaintiffs fail to state a

public nuisance claim because they do not allege special injury, that

Plaintiffs’ claim for past harm under NYLL § 200 is preempted by

New York’s Workers’ Compensation Law, and that Plaintiffs’ NYLL

§ 200 claim based on the threat of future harm fails to allege a

cognizable injury. As to Plaintiffs’ NYLL § 191 claims, the district

court concluded that Plaintiffs cannot state a claim for relief because

COVID-19 sick leave payments are not “wages” under § 191.

18 On November 24, 2020, Plaintiffs filed a timely notice of appeal.

II. Discussion

We review de novo a district court’s grant of a motion to dismiss

under Rules 12(b)(1) and 12(b)(6), accepting the allegations in the

complaint as true and drawing all reasonable inferences in favor of

the plaintiff. Atterbury v. U.S. Marshals Serv.,

(2d Cir.

2015); see also Ashcroft v. Iqbal,

(2009). When a district

court invokes the primary jurisdiction doctrine, our standard of

review is likewise de novo. Nat’l Commc’ns Ass’n, Inc. v. Am. Tel. & Tel.

Co.,

(2d Cir. 1995) [hereinafter AT&T Co.] (“[T]he

standard of review [of a dismissal on the basis of the primary

jurisdiction doctrine] is essentially de novo.” (citation omitted)); see also

Seneca Nation of Indians v. New York,

(2d Cir. 2021)

(“We review a district court’s decision not to apply the doctrine of

primary jurisdiction de novo.”); Ellis v. Tribune Television Co.,

, 83 n.14 (2d Cir. 2006) (same).

19 On appeal, Plaintiffs ask us to vacate the grant of Amazon’s

motion to dismiss, challenging the district court’s conclusions that:

deference is due to OSHA under the primary jurisdiction doctrine;

Plaintiffs fail to plausibly allege special harm sufficient to state a claim

for public nuisance; the claim under NYLL § 200 is preempted by

New York’s Workers’ Compensation Law; and COVID-19 sick leave

payments do not constitute “wages” as defined by NYLL § 191.

Amazon moves for partial dismissal of Plaintiffs’ appeal, arguing that

Plaintiffs’ public nuisance and NYLL § 200 claims are moot because

New York has since rescinded the guidance upon which these claims

rely.

As a preliminary matter, we deny Amazon’s motion for partial

dismissal. Plaintiffs’ public nuisance and NYLL § 200 claims are not

moot because these claims do not rely solely upon rescinded New

York guidance, and it is still possible for a court to grant Plaintiffs

injunctive and declaratory relief if they are the prevailing party.

20 Turning to the merits, we agree with Plaintiffs that the district court

wrongly applied the primary jurisdiction doctrine to their public

nuisance and NYLL § 200 claims. But ultimately, as we explain below,

only Plaintiffs’ NYLL § 200 claim survives dismissal.

A. Plaintiffs’ public nuisance and NYLL § 200 claims are not moot

As a threshold matter, we must consider Amazon’s motion for

partial dismissal of the appeal on mootness grounds. “[M]ootness

doctrine ensures that [a] litigant’s interest in the outcome continues

to exist throughout the life of the lawsuit.” Conn. Citizens Def. League,

Inc. v. Lamont,

(2d Cir. 2021) (internal quotation marks

omitted). If because of changed circumstances “a case that presented

an actual redressable injury at the time it was filed ceases to involve

such an injury, it ceases to fall within a federal court’s Article III

subject matter jurisdiction and must be dismissed for mootness.”

(internal quotation marks omitted). “A case becomes moot when it is

impossible for a court to grant any effectual relief whatever to the

21 prevailing party.”

(internal quotation marks omitted).

Amazon argues that Plaintiffs’ public nuisance and NYLL § 200

claims are moot because the guidance on which these claims rely, the

New York Forward plan, has since been rescinded. 1 We read the

amended complaint differently. Contrary to Amazon’s argument,

Plaintiffs’ claims do not rely solely on alleged violations of New York

Forward guidance. Instead, Plaintiffs use the New York Forward

guidance as one of several guideposts—alongside, for example, the

Leave Law and CDC guidance—for establishing the minimum duty

Amazon owes to Plaintiffs with respect to worker health and safety at

JFK8 in the face of COVID-19.

Accordingly, a live controversy remains. In particular,

rescission of the New York Forward guidance did not resolve

1 As of June 15, 2021, New York lifted most COVID-19 restrictions, including most New York Forward guidance. New York State, New York Forward, Archived Industry Guidance, https://forward.ny.gov/archived-industry-guidance (last visited October 14, 2022) (explaining how the “archived New York Forward industry reopening guidance documents are no longer mandatory”).

22 whether Amazon “provide[s] reasonable and adequate protection to

the lives, health and safety” of its employees in conformity with

NYLL § 200, 2 App’x at 120, nor did it resolve whether Amazon has

created a public nuisance. Even if Plaintiffs now lack their preferred

guidepost to establish Amazon’s minimum duty to its employees,

“[a]s long as [Plaintiffs] have a concrete interest in the outcome of the

litigation, the case is not moot.” Firefighter’s Local 1784 v. Stotts,

(1984); see New Eng. Health Care Emps. Union, Dist. 1199

v. Mount Sinai Hosp.,

, 1029 (2d Cir. 1995) (“[S]o long as

2 Amazon also points to a May 10, 2022, decision of the First Department of the Appellate Division of the New York Supreme Court to argue that Plaintiffs’ NYLL § 200 claim should be dismissed as moot. See Appellees’ Rule 28(j) Ltr. (May 12, 2022). There, the First Department concluded that the New York Attorney General’s NYLL § 200 claim “seeking a permanent injunction requiring Amazon to undertake policies consistent with COVID-19 workplace guidelines issued by the State must be dismissed as moot, as the State has withdrawn the public health guidance that the claim seeks to enforce, including by prospective injunctive relief.” New York v. Amazon.com,

(1st Dep’t 2022). That decision does not alter our conclusion here. At bottom, the New York Attorney General in the New York case specifically sought to enforce guidance that is no longer in place. In comparison, as we explain above, Plaintiffs do not seek to enforce the now-withdrawn New York guidance. Rather, Plaintiffs rely upon New York guidance as one of several guideposts to argue that Amazon is breaching the duty of care it owes to JFK8 workers under NYLL § 200.

23 the appellant retains some interest in the case, so that a decision in its

favor will inure to its benefit, its appeal is not moot.”). Having

considered the remainder of Amazon’s justiciability arguments, we

find them meritless and turn to the substance of Plaintiffs’ appeal.

B. The district court incorrectly applied the primary jurisdiction doctrine in dismissing Plaintiffs’ state law claims in deference to OSHA

The federal courts have a “virtually unflagging

obligation . . . to exercise the jurisdiction given them.” Tassy v.

Brunswick Hosp. Ctr., Inc.,

(2d Cir. 2002) (quoting Colo.

River Water Conservation Dist. v. United States,

(1976)).

Here, we must address a “relatively narrow” exception to this

obligation: the doctrine of primary jurisdiction. Goya Foods, Inc. v.

Tropicana Prods., Inc.,

(2d Cir. 1988). The doctrine is

a prudential one, Schiller v. Tower Semiconductor Ltd.,

,

294–95 (2d Cir. 2006), fashioned by the courts, TCG N.Y., Inc. v. City of

White Plains,

, 74 (2d Cir. 2002), concerned primarily with

“promoting relationships between the courts and [the] administrative

24 agencies charged with particular regulatory duties,” Ellis,

(quoting United States v. W. Pac. R.R. Co.,

(1956)),

and with ensuring the two “do not work at cross-purposes,”

(internal quotation marks omitted). The doctrine of primary

jurisdiction “applies where a claim is originally cognizable in the

courts, but enforcement of the claim requires, or is materially aided

by, the resolution of threshold issues, usually of a factual nature,

which are placed within the special competence of the administrative

body.” Golden Hill Paugussett Tribe of Indians v. Weicker,

,

58–59 (2d Cir. 1994).

For a court to invoke the primary jurisdiction doctrine, it must

determine that the agency, not the courts, should have the “initial

decisionmaking responsibility.” Ellis,

(emphasis

added) (internal quotation marks omitted). A court’s application of

the primary jurisdiction doctrine thus “does not [necessarily] deprive

the court of jurisdiction.” Reiter v. Cooper,

, 268–69 (1993).

25 Rather, once a court determines that the doctrine applies, it has

discretion either: (1) to retain jurisdiction or (2) to dismiss the case

without prejudice.

If the court retains jurisdiction, the case is “held pending the

conclusion of an appropriate administrative proceeding.” Gen. Am.

Tank Car Corp. v. El Dorado T. Co.,

(1940); see W. Pac.

R.R. Co.,

(“[T]he judicial process is suspended pending

referral of such issues to the administrative body for its views.”). In

other words, the case is “stayed so as to give the plaintiff a reasonable

opportunity within which to apply to the [agency] for a ruling.”

Mitchell Coal & Coke Co. v. Pa. R.R. Co.,

(1913); see also

Reiter,

n.3 (observing that “‘[r]eferral’ is sometimes

loosely described as a process whereby a court refers an issue to an

agency,” and clarifying that the Supreme Court’s decision in Mitchell

Coal “spelled out the actual procedure contemplated [in] holding that

further action by the district court should be stayed so as to give the

26 plaintiff a reasonable opportunity within which to apply to the

[agency] for a ruling as to the reasonableness of the practice” (internal

quotation marks omitted)).

A court in its discretion may choose to dismiss the case without

prejudice—but only “if the parties would not be unfairly

disadvantaged.” Reiter,

. To determine whether a party

will be unfairly disadvantaged, a court can look to the relief the party

is seeking. For example, in Carnation Co. v. Pacific Westbound

Conference, the Supreme Court distinguished between a plaintiff

seeking injunctive relief and a plaintiff seeking damages.

,

222–23 (1966). There, the Supreme Court noted how, unlike a suit for

injunctive relief from continuing conduct—a suit that “could easily be

reinstituted if and when the [agency] determined” the questions at

issue—a “damage[s] action for past conduct cannot be easily

reinstated at a later time” because “[s]uch claims are subject to the

Statute of Limitations.”

Our Court applied these principles in

27 Mathirampuzha v. Potter, where we vacated the district court’s

dismissal and remanded with instructions to stay the proceedings

pending a final determination by the administrative agency because

dismissing the case presented “a significant danger of unfair

disadvantage . . . inasmuch as the plaintiff’s claim [was] subject to a

statute of limitations.”

, 84–85 (2d Cir. 2008).

When determining whether to apply the doctrine of primary

jurisdiction, a court must look to “whether the reasons for the

existence of the doctrine are present and whether the purposes it

serves will be aided by its application in the particular litigation.” W.

Pac. R.R. Co.,

. These reasons and purposes are two-fold.

Tassy,

. First, the doctrine seeks to foster “uniformity

and consistency in the regulation of business entrusted to a particular

agency.” Goya Foods,

(alteration omitted) (quoting

Nader v. Allegheny Airlines, Inc.,

, 303–04 (1976)); see Tex. &

Pac. Ry. Co. v. Abilene Cotton Oil Co.,

(1907)

28 (concluding that “without previous action by the [agency], power

might be exerted by courts and juries generally to determine the

reasonableness of an established rate, [and] it would follow that

unless all courts reached an identical conclusion a uniform standard

of rates in the future would be impossible”). Second, the doctrine

recognizes that, for certain matters, “‘the expert and specialized

knowledge of the agencies’ should be ascertained before judicial

consideration of the legal claim.” Goya Foods,

(quoting

W. Pac. R.R.,

); see Great N. Ry. Co. v. Merchs.’ Elevator Co.,

(1922) (invoking primary jurisdiction because “the

inquiry is essentially one of fact and of discretion in technical

matters”).

With the doctrine’s reasons and purposes in mind, we turn to

whether deferring to OSHA here is appropriate. Although “[n]o fixed

formula exists for applying the doctrine of primary jurisdiction,” Ellis,

(quoting W. Pac. R.R. Co.,

), and we

29 generally conduct our analysis on a “case-by-case basis,” Gen. Elec.

Co. v. MV Nedlloyd,

(2d Cir. 1987), in Ellis v. Tribune

Television Co., our Court highlighted four factors—which we refer to

here as the “Ellis factors”—upon which we focus our analysis:

(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made.

443 F.3d at 82–83. We must also “balance the advantages of applying

the doctrine against the potential costs resulting from complications

and delay in the administrative proceedings.”

at 83 (quoting

AT&T Co.,

).

1. The Ellis Factors

Upon weighing the Ellis factors, balancing the advantages of

applying the doctrine of primary jurisdiction with the potential costs,

and considering the doctrine’s two-fold aim—particularly the

30 importance of the courts staying their hand in favor of an agency’s

knowledge and expertise—we conclude that the district court

incorrectly applied the doctrine to Plaintiffs’ public nuisance and

NYLL § 200 claims.

a. The question at issue is within the conventional experience of judges

Amazon argues that “Plaintiffs have asked the district court to

craft out of whole cloth a series of regulations applicable to JFK8

alone,” which it contends “is not the core competence of courts.”

Amazon Br. at 21. But the issues before us are tort-based claims—

public nuisance and breach of NYLL § 200—that are within the

conventional experience of judges.

Generally, we decline to apply the doctrine of primary

jurisdiction “when the issue at stake is legal in nature and lies within

the traditional realm of judicial competence.” Goya Foods,

. For instance, in determining whether it was appropriate to apply

the doctrine, we have identified the following as within “the daily fare

31 of federal judges,” Schiller, 449 F.3d at 295: statutory interpretation,

id.; applying “reasonably settled definitions” in a statute to the facts

of a case, F.T.C. v. Verity Int’l, Ltd.,

, 60 (2d Cir. 2006); issues

of contract interpretation, Fulton Cogeneration Assocs. v. Niagara

Mohawk Power Corp.,

(2d Cir. 1996); and issues involving

“the application of common law principles,” Gen. Elec. Co., 817 F.2d

at 1027–28.

Looking at the questions before us here, courts routinely decide

whether a defendant’s conduct constitutes a public nuisance. See, e.g.,

Benoit v. Saint-Gobain Performance Plastics Corp.,

, 504–05

(2d Cir. 2020); Connecticut v. Am. Elec. Power Co.,

(2d

Cir. 2009), rev’d on other grounds,

(2011); New York v. Shore

Realty Corp.,

, 1050–52 (2d Cir. 1985); 532 Madison Ave.

Gourmet Foods v. Finlandia Ctr.,

(2001); see also Tull

v. United States,

(1987) (“A public nuisance action

was a classic example of the kind of suit that relied on injunctive relief

32 provided by courts in equity.”). In addressing this issue, we must

answer antecedent questions of whether a defendant is endangering

the health or safety of a considerable number of persons and whether

a plaintiff has alleged that they suffer special injury beyond that

suffered by the community at large. See Benoit, 959 F.3d at 504–05; 532

Madison Ave.,

.

Similarly, Plaintiffs’ § 200 claim presents questions sounding in

state tort law, and routinely addressed by courts: what duty of care

Amazon owes to Plaintiffs and whether Amazon is in breach of its

duty. See, e.g., In re World Trade Ctr. Lower Manhattan Disaster Site

Litig.,

(2d Cir. 2014); Caronia v. Philip Morris USA,

Inc.,

(2d Cir. 2013); Akins v. Glens Falls City Sch. Dist.,

(1981). As NYLL § 200 is a codification of the

common law duty to provide workers with a safe work environment,

e.g., Lombardi v. Stout,

(N.Y. 1992); Everitt v.

Nozkowski,

(2d Dep’t 2001), a federal court here

33 can look to New York’s common law to inform its determination as

to whether Amazon breached the duty of care it owed to Plaintiffs.

And where common law principles are at play, we have determined

that the issues should be addressed in a judicial forum. See, e.g., Gen.

Elec. Co., 817 F.2d at 1027–28 (“[T]he application of common law

principles [is] more competently decided in a judicial forum”

(internal citations omitted)).

Amazon also takes issue with the relief Plaintiffs seek, arguing

that Plaintiffs ask the district court to regulate through an injunction

and to address “detailed aspects” of operations at JFK8, thereby

making OSHA, not the courts, the forum best positioned to evaluate

Plaintiffs’ claims. Amazon Br. at 23–24. But Amazon’s arguments

about the possible scope of relief do not transform the traditional state

tort law questions before us into issues requiring OSHA’s technical

and policy expertise. Before relief can be fashioned, questions of

injury, duty, and breach must be addressed. These questions,

34 including whether the relief requested exceeds that warranted by the

injuries alleged, are squarely within a district court’s bailiwick.

b. The question at issue is not particularly within the agency’s discretion

To determine whether a question falls particularly within an

agency’s discretion, a court looks not to whether administrative

proceedings will make any contribution to resolving the question

before it, but whether administrative proceedings are “likely to make

a meaningful contribution” to resolving the question. Ricci v. Chi.

Mercantile Exch.,

(1973) (emphasis added) (internal

quotation marks omitted). Thus, under the second Ellis factor we ask

“whether an agency’s review of the facts ‘will be a material aid’ to the

court ultimately charged with applying” the facts to the law. Tassy,

(emphasis added) (quoting Ricci,

).

OSHA’s review of these facts would not be such an aid.

Congress created OSHA through the Occupational Safety and

Health Act of 1970 (the “OSH Act”) to “assure . . . safe and healthful

35 working conditions” for workers by setting and enforcing standards

and providing research, education, and training in the field of

occupational safety and health.

. It is therefore within

OSHA’s competence to evaluate and create workplace health and

safety standards. But even assuming this case falls within that

competence, “[i]n the primary jurisdiction context, whether an agency

is statutorily authorized to resolve a particular issue is not itself

determinative of whether to apply the doctrine.” Tassy,

.

To determine whether an agency’s expertise would materially

aid the court, we often assess whether a given issue is “legal in

nature,” Goya Foods, 846 F.2d at 851–52, or “of a factual nature,” Golden

Hill Paugussett Tribe of Indians, 39 F.3d at 58–59. For example, we have

concluded that it is particularly within the Bureau of Indian Affairs’

discretion to resolve “factual issues regarding tribal status,” Id. at 60,

and that the Federal Communications Commission’s exclusive

36 authority over licensing materially aids the “highly factual inquiry”

of whether to apply a license waiver. Ellis, 443 F.3d at 83–85. But even

in those instances, categorizing the nature of the issue does not end

our inquiry.

When a court is asked to resolve a factual issue the subject-

matter of which falls within an agency’s purview, the question is not

whether, in the abstract, it would be helpful for the agency to set

standards of its own. The issue is instead whether the agency’s

expertise would materially assist the court in resolving difficult

factual questions to determine whether specified legal standards have

been violated. For instance, in Tassy v. Brunswick Hospital Center, Inc.,

an agency’s medical expertise was not required to resolve the

pertinent factual issue before the Court: whether the defendant

committed the alleged sexual harassment. 296 F.3d at 70–71. The

issue did not “implicate any medical data or complex records,” and

so, it was not particularly difficult for a court to handle, nor

37 particularly necessary for an agency to resolve. Id. Similarly, in AT&T

Co., determining whether a party qualified for a lower contract tariff

rate depended on answering the “rather simple factual question” of

whether a party had timely paid its bills, a question whose resolution

was “within the district court’s experience” and did not require the

FCC’s “policy expertise, or its specialized knowledge.”

.

In support of its contention that the public nuisance and NYLL

§ 200 questions before us are particularly within OSHA’s discretion,

Amazon argues that Plaintiffs’ claims “turn on factual issues

requiring both technical and policy expertise.” Amazon Br. 23

(internal quotation marks omitted). Amazon highlights how, as of

December 2020, OSHA had “conduct[ed] more than 1,430 COVID-

related inspections and issu[ed] citations totaling more than

$3,849,222 to 294 employers.” Id. at 25. But Amazon fails to mention

that OSHA issued most of those COVID-related citations to

employers in the healthcare sector. See Dep’t of Labor Br. at 33, AFT

38 v. OSHA, No. 20-73203 (9th Cir. Dec. 31, 2020) (noting that, of the 294

employers to have received COVID-related citations, 261 were

employers in the healthcare sector). As such, the COVID-related

citations are consistent with OSHA’s other actions during the

pandemic that have prioritized healthcare workers—namely, its

issuance of an emergency temporary standard (“ETS,” discussed at

greater length below) governing the health and safety of healthcare

and healthcare support workers. These healthcare-focused actions,

therefore, do not necessarily suggest that OSHA’s expertise would

materially aid the court in resolving the issues relating to JFK8.

Indeed, no OSHA action to date, nor any executive order

concerning worker health and safety, confirms that deferring to

OSHA would be appropriate. On January 21, 2021, President Biden

issued a proclamation directing OSHA to issue revised guidance for

employers during the COVID-19 pandemic and to “consider whether

any emergency temporary standards on COVID-19 . . . are necessary.”

39 Proclamation No. 13999,

, § 2(b) (Jan. 21, 2021). In

response, OSHA issued the following in January 2021: (1) guidance

clarifying that OSHA’s existing standards that protect workers from

infectious diseases—see, e.g.,

(standard for

respiratory protection), 1910.136 (standard for personal protective

equipment), 1910.141 (standard for sanitation)—remain in place as

protection from contracting and spreading COVID-19, see Dep’t of

Labor, Occupational Safety & Health Admin., Protecting Workers:

Guidance on Mitigating and Preventing the Spread of COVID-19 in the

Workplace (posted Jan. 29, 2021) (updated June 10, 2021),

https://www.osha.gov/coronavirus/safework; and (2) an ETS “to

protect healthcare and healthcare support service workers from

occupational exposure to COVID-19,”

, 32,376. On

November 5, 2021, OSHA issued another ETS, one aimed at

protecting “unvaccinated employees of large employers (100 or more

employees) from the risk of contracting COVID-19 by strongly

40 encouraging vaccination.” 3

, 61,402. The Supreme

Court temporarily stayed the latter ETS on January 13, 2022, see Nat’l

Fed’n of Indep. Bus. v. Dep’t of Labor,

, 666–67 (2022), and

shortly thereafter, OSHA withdrew it, see

.

Although OSHA has since rescinded the November 2021

vaccination and testing ETS, Amazon argues that “even if the ETS

never takes effect, it still represents an unambiguous assertion of

OSHA’s expertise and jurisdiction over the health-and-safety issues

at issue here.” Amazon 28(j) Ltr. at 2 (Jan. 20, 2022). And that “[e]ven

if the ETS currently lacks preemptive force,” the OSH Act still

preempts Plaintiffs’ NYLL § 200 claim. Id. We disagree.

With the ETS rescinded, there is no risk that, by resolving

Plaintiffs’ claims, a court would be wading into an area already

3OSHA issued the vaccination and testing ETS after President Biden urged the agency to promulgate an emergency temporary standard requiring “all employers with 100 or more employees . . . to ensure their workforces are fully vaccinated or show a negative test at least once a week.” President Joseph Biden, Remarks on Fighting the COVID-19 Pandemic (Sept. 9, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/ remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/.

41 occupied by OSHA. And even had OSHA not rescinded the ETS,

there is no reason to think that the agency was poised to

“unambiguous[ly] assert[]” jurisdiction over Plaintiffs’ claims, which

concern, among other things, social distancing and sick leave. Indeed,

the rescinded ETS limited itself to vaccination. Accordingly, even if

OSHA were to indicate that it was on the verge of re-entering the fray

on vaccination, that would hardly lead to the conclusion that the

agency was planning to go so far as to regulate sick leave, social

distancing, or any other areas implicated by Plaintiffs’ claims. Under

these circumstances, we conclude that OSHA’s particular expertise

would not materially aid the resolution of Plaintiffs’ claims.

c. There is no substantial danger of inconsistent rulings

Because OSHA has chosen not to promulgate a cross-industry,

COVID-19-specific standard that would govern the facts of this case,

our conclusion that the primary jurisdiction doctrine does not apply

presents no substantial danger of inconsistent rulings. “Federal

42 regulation of the workplace [under the OSH Act] was not intended to

be all encompassing.” Gade v. Nat’l Solid Wastes Mgmt. Ass’n,

(1992). Instead, “Congress expressly saved two areas from

federal pre-emption”: (1) “Section 4(b)(4) of the OSH Act states that

the Act does not . . . ‘enlarge or diminish or affect in any other manner

the common law or statutory rights, duties, or liabilities of employers

and employees under any law with respect to injuries, diseases, or

death of employees arising out of, or in the course of, employment,’”

(quoting

(b)(4)); and (2) “Section 18(a) provides that

the Act does not ‘prevent any State agency or court from asserting

jurisdiction under State law over any occupational safety or health

issue with respect to which no [federal] standard is in effect.’”

at

96–97 (quoting

(a)).

There are no federal standards in effect governing the COVID-

19 protocols at JFK8 that Plaintiffs challenge in their amended

complaint. And even where there may be some overlap between

43 agency and court action, overlap alone does not justify invoking the

primary jurisdiction doctrine, see Goya Foods,

(concluding that “the pendency of a [Patent and Trademark Office]

proceeding was not a proper basis to forestall [the plaintiff’s]

lawsuit”), especially where the agency’s organic statute permits a

parallel enforcement scheme, as is the case here with the OSH Act, see,

e.g., Nader, 426 U.S. at 299–302 (concluding that the common law tort

action for fraudulent misrepresentation and the Federal Aviation Act

“are not ‘absolutely inconsistent’ and may coexist”).

Moreover, even if OSHA’s vaccination and testing ETS were

still in effect, that ETS would not alter this conclusion, as a state

occupational safety or health standard is only preempted to the extent

that it is “inconsistent” and “relate[s] to the issues addressed by [the]

ETS.”

, 61,505. As the ETS said, “[s]tate and local

requirements that ban or otherwise limit workplace vaccination, face

covering, or testing clearly ‘relate’ to the occupational safety and

44 health ‘issues’ that OSHA is regulating in this ETS.”

, 61,508; see also Gade,

(“The principal indication

that Congress intended to pre-empt state law is § 18(b)’s statement

that a State ‘shall’ submit a plan if it wishes to ‘assume responsibility’

for ‘development and enforcement . . . of occupational safety and

health standards relating to any occupational safety or health issue

with respect to which a Federal standard has been promulgated.’”

(emphasis added)). Plaintiffs’ claims do not relate to those issues.

Accordingly, there is no substantial risk of inconsistent rulings.

d. Plaintiffs have not made a prior application to the agency

Finally, while not determinative, the fact that Plaintiffs have

made no prior application to OSHA weighs against applying the

doctrine of primary jurisdiction. “If prior application to the agency is

present, this factor provides support for the conclusion that the

doctrine of primary jurisdiction is appropriate.” Ellis,

(emphasis added); see also Golden Hill Paugussett Tribe of Indians, 39

45 F.3d at 60 (concluding deferral to the agency was “fully warranted . . .

where the plaintiff has already invoked the BIA’s authority”). Thus,

“if prior application to the agency is absent, this factor may weigh

against referral of the matter to the agency.” Ellis,

(emphasis added); see also Schiller, 449 F.3d at 295 (noting how,

ordinarily, the fact that “the party challenging the agency action . . .

made no prior application to the agency,” would “weigh against

primary jurisdiction”). The fourth Ellis factor, in other words, seeks

to accomplish one of the doctrine’s central aims: “to ensure that courts

and agencies with concurrent jurisdiction over a matter do not work

at cross-purposes.” Fulton Cogeneration Assocs.,

. Here,

there is no pending proceeding before the agency, and there is no

indication that the agency is poised to take up the specific questions

before us, meaning that there is minimal, if any, concern that a court

will resolve Plaintiffs’ claims and fashion a remedy in a way that

would work at a “cross-purpose” with OSHA’s actions.

46 2. Balancing the advantages and the costs

In deciding whether to apply the primary jurisdiction doctrine,

we must also “balance the advantages of applying the doctrine

against the potential costs resulting from complications and delay in

the administrative proceedings.” Ellis,

(internal

quotation marks omitted). We conclude that the potential costs

would outweigh the advantages. Given OSHA’s understandable

prioritization during the COVID-19 pandemic of the healthcare sector

and the issuance of nationwide mandates such as vaccination

requirements for certain private employers, it is not apparent that

OSHA is likely, as a policy matter, to shift gears and prioritize

developing more general workplace COVID-19 safety standards—

much less standards that would provide meaningful guidance with

respect to Amazon’s JFK8 facility. We discern that abstention in favor

of action by OSHA has the potential to delay this litigation, without

any likelihood of countervailing advantages.

In sum, we conclude that the district court erred in abstaining

47 based on the primary jurisdiction doctrine.

C. Plaintiffs do not plausibly plead a special injury to support a public nuisance claim against Amazon

The district court properly dismissed Plaintiffs’ public nuisance

claim because Plaintiffs fail to allege special injury. Under New York

law, “[a] cause of action for public nuisance ‘exists for conduct that

amounts to a substantial interference with the exercise of a common

right,’ such as ‘endangering’ the ‘health[ or] safety . . . of a

considerable number of persons.’” Benoit,

(quoting

532 Madison Ave.,

). A private person has a cause of

action for public nuisance “only if it is shown that the person suffered

special injury beyond that suffered by the community at large.” Id. at

505 (internal quotation marks omitted). “The injury must be different

in ‘kind,’ not simply ‘degree.’” Id. (quoting 532 Madison Ave., 96

N.Y.2d at 293–94). It therefore is not enough that a private person

“has suffered the same kind of harm or interference but to a greater

extent or degree.” Am. Elec. Power Co.,

(quoting

48 Restatement (Second) Torts § 812C, cmt. b). The Restatement

(Second) of Torts provides helpful insight into the rule that a private

person must suffer a special injury to state a claim for public nuisance.

Comment a to Section 821C states that “it is uniformly agreed that a

private individual has no tort action for the invasion of the purely

public right, unless his damage is to be distinguished from that

sustained by other members of the public.”

Plaintiffs argue that “Amazon’s maintenance of an unsafe work

environment causes a different kind of harm to Plaintiffs because it is

a direct affront to their health and safety in their homes and

workplaces.” Plaintiffs Br. at 34. Plaintiffs contend that, unlike

members of the public at large, who can protect themselves from the

virus by avoiding public places, they lack the autonomy to avoid the

reach of Amazon’s conduct since they cannot avoid JFK8 or their

homes. According to Plaintiffs, they have “no meaningful choice but

to subject themselves to Amazon’s misconduct.” Id. at 38.

49 Amazon counters with the argument that “everyone in New

York who goes to work, the grocery store, or anywhere else risks

being ‘directly exposed’ to COVID-19. The physical, emotional, and

financial harms visited on New York by the virus are common to the

entire community, not unique to Plaintiffs.” Amazon Br. at 40. And

with respect to the Non-Employee Plaintiffs, Amazon argues that

they experience the “same kind of risk that all New Yorkers face when

a family member interacts with others in the community, either by

going to work, shopping at a grocery store, or having a service

technician or other person visit their home.” Id. at 41. Although we

do not discount the risks Plaintiffs allege they face nor the harms

Plaintiffs allege they experience, we agree with Amazon that

Plaintiffs’ alleged harms are different in degree, not in kind, and so

do not make out the requisite special injury to state a claim for public

nuisance. 4

4 To claim that their harm is different in kind and not merely degree,

50 Similarly, Plaintiffs’ allegations that they have suffered

financial losses, including lost wages, because they have avoided

work as a result of Amazon’s workplace safety practices, fail to meet

the special injury requirement. Again, because of the pandemic, the

public at large has suffered the same kind of harm—often devastating

financial losses—that Plaintiffs allege. In fact, Plaintiffs agree that

“the New York economy has been hard-hit by the pandemic.” App’x

at 82. Like Plaintiffs, many other residents of New York have forgone

attending work because of a generalized risk of contracting COVID-

Plaintiffs rely on the Ninth Circuit’s decision in Ileto v. Glock,

(9th Cir. 2003). Plaintiffs Br. at 37. There, the Ninth Circuit concluded that the plaintiffs sufficiently alleged that they “suffered an injury, namely trauma resulting from an assault with a gun and gun shot wounds, different in kind” from the injuries experienced by the general public. Ileto, 349 F.3d at 1212 (internal quotation marks omitted). Plaintiffs’ reliance on Ileto is misplaced. As shooting victims, the Ileto plaintiffs alleged harms (gunshot wounds and trauma) different in kind from the generalized fear and anxiety the plaintiffs alleged that the public experienced following the shooting. Id. at 1211–12. Without expressing any view on the correctness of the Ninth Circuit’s decision, we conclude that Plaintiffs here have not alleged any analogous harm. Regardless of whether a person works at JFK8, is a member of a JFK8 employee’s household, or is a member of the public at large, the alleged harm remains the same: an interference with one’s health and safety— whether through contracting the virus or through fear of contracting the virus.

51 19. And as New York courts have made clear, when “pecuniary

damages are ‘so general and widespread as to affect a whole

community, or a very wide area within it,’” that injury is the same in

kind. 532 Madison Ave.,

.

Plaintiffs compare their situation to that of the plaintiff-

homeowners in Fresh Air for the Eastside, Inc. v. Waste Mgmt. of New

York,

(W.D.N.Y. 2019), who owned property near

a noxious landfill. See Plaintiffs Br. 34. Plaintiffs effectively assert that

their inability to avoid their workplaces and their homes is akin to the

Fresh Air plaintiffs’ “inability to fully utilize their homes” and the

diminution in value of their homes resulting from living adjacent to a

noxious landfill. 405 F. Supp. 3d at 442. But in the case of the noxious

landfill, the plaintiffs’ special injury arose from the landfill’s

interference with their property rights, not from a lack of autonomy

over leaving their homes. Id. Here, the public at large shares in the

risk of contracting COVID-19, regardless of property ownership and

52 employment. As the district court correctly concluded, the general

public cannot avoid the risk of exposure to COVID-19 “simply by

avoiding JFK8, its immediate surrounding area, and its employees.”

App’x at 140.

To be sure, in Connecticut v. American Electric Power Co, Inc., our

Court suggested that “[d]ifference in degree . . . as a measure of a

different kind of harm, is not entirely out of the picture.”

. This statement relied on comment c to § 821C of the Restatement

(Second) of Torts, which provides that “[d]ifference in degree of

interference cannot . . . be entirely disregarded in determining

whether there has been difference in kind.” The comment provides

an example:

Normally there may be no difference in the kind of interference with one who travels a road once a week and one who travels it every day. But if the plaintiff traverses the road a dozen times a day he nearly always has some special reason to do so, and that reason will almost invariably be based upon some special interest of his own, not common to the community. Significant interference with that interest may be particular damage,

53 sufficient to support the action in tort. . . . Thus in determining whether there is a difference in the kind of harm, the degree of interference may be a factor of importance that must be considered.

But in American Electric Power Co. we did not need to “demarcate the

outer limits of § 821C(1)’s requirement that the harms be different in

kind (sometimes called ‘special injury’), because the harms asserted

by the [plaintiffs] qualif[ied]” as a special injury (i.e., a harm that was

different in kind).

. We thus did not go so far as to hold

that the degree of a plaintiff’s harm plays a part in determining

whether that harm is different in kind. And because Plaintiffs’

asserted injury from COVID-19 exposure is not so markedly greater

in degree than that faced by large numbers of the public, we likewise

decline to reach that question today.

D. The New York Workers’ Compensation Law does not bar claims for injunctive relief under NYLL § 200

Amazon argues that the New York Workers’ Compensation

Law (“NYWCL”) precludes Plaintiffs’ claims for injunctive relief

under New York Labor Law (“NYLL”) § 200. We disagree.

54 The New York Court of Appeals has not yet had the

opportunity to decide this question of New York law, so our task is to

predict how it would rule. See In re Brooklyn Navy Yard Asbestos Litig.,

(2d Cir. 1992). And where the highest court of the

state has not spoken, “the best indicators of how it would decide are

often the decisions of lower state courts.”

Here, the text, history,

and underlying purposes of the NYWCL, coupled with relevant

precedent from New York’s intermediate courts, enable us to predict

what the New York Court of Appeals would hold: the NYWCL’s

exclusivity provision does not bar claims for injunctive relief under

NYLL § 200.

Construing New York law, “[o]ur analysis begins with the

language of the statute.” People v. Francis,

(2018).

In addition to statutory language itself, the specific context in which

statutory language is used and the broader context of the statute as a

whole assist the court in ascertaining the text’s plain meaning. See

55 Scott v. Mass. Mut. Life Ins. Co.,

(1995); see also

Albano v. Kirby,

(1975) (“No rule of construction . . .

permits the segregation of a few words from their context and from

all the rest of the section or rule . . . .”). And “[l]iteral meanings of

words are not to be adhered to or suffered to ‘defeat the general

purpose and manifest policy intended to be promoted’” by a given

statute. Council of City of New York v. Giuliani,

(1999)

(quoting People v. Ryan,

(1937)).

In this case, we must ascertain the plain meaning of both NYLL

§ 200 and NYWCL § 11. NYLL § 200 outlines the general duty of

employers to safeguard their employees’ well-being by providing

“reasonable and adequate protection to [their] lives, health and

safety” in the workplace. As NYLL § 200 is “a codification of the

common-law duty to provide workers with a safe work

environment,” it essentially codifies a claim for common law

negligence. Everitt,

; In re World Trade Ctr. Lower

56 Manhattan Disaster Site Litig.,

(“Codifying common law

negligence, New York Labor Law § 200 provides for a general duty to

protect the health and safety of employees.”).

The NYWCL focuses on monetary compensation for workers’

injuries. Section 10 requires that an employer “secure compensation

to his employees and pay or provide compensation for their disability

or death from injury arising out of and in the course of the

employment.” And section 11 clarifies that this liability “shall be

exclusive and in place of any other liability whatsoever, to such

employee . . . entitled to recover damages, contribution or indemnity,

at common law or otherwise, on account of such injury or death or

liability arising therefrom . . . .”

To argue that the NYWCL bars Plaintiffs’ claims, Amazon relies

on the language in NYWCL § 11 providing that the law is exclusive

of “any other liability whatsoever.” This language, Amazon

contends, illustrates that section 11 protects “employers from suit,”

57 including suits in both law and equity. Amazon Br. at 48 (internal

quotation marks omitted). Plaintiffs, on the other hand, interpret the

exclusivity provision to preclude employees from seeking damages,

but not injunctive relief, from employers under NYLL § 200. 5

The text of NYWCL § 11 supports Plaintiffs’ interpretation.

Namely, the language Amazon cites—“any other liability

whatsoever”—cannot be divorced from the monetary awards listed

later in the same sentence: “damages, contribution, or indemnity.”

N.Y. Workers’ Comp. Law § 11 (McKinney 2017); see Albano,

; see also King v. Time Warner Cable Inc.,

(2d Cir. 2018) (“[W]ords to be interpreted are not considered in

isolation.”); City of New York v. Beretta U.S.A. Corp.,

(2d Cir. 2008) (“[W]here specific words follow a general word, the

5 As a threshold matter, we do not find it necessary to separate Plaintiffs’ arguments under NYLL § 200 into distinct backward- and forward-looking claims. Plaintiffs asked the district court to enjoin Amazon from continuing with its alleged breach of duty under NYLL § 200. That Plaintiffs cite both past and ongoing conduct to support their need for injunctive relief does not require us to split their single claim in two.

58 specific words restrict application of the general term to things that

are similar to those enumerated.” (internal quotation marks omitted)).

That list of monetary awards confirms that the “liability” referenced

in the NYWCL’s exclusivity provision is confined to claims for

retrospective damages and does not encompass claims for injunctive

relief.

The NYWCL’s legislative history and New York appellate court

cases further demonstrate that the NYWCL seeks to balance the

monetary interests of employers and employees, while the NYLL

focuses more on regulating employers’ conduct. See, e.g., Acevedo v.

Consolidated Edison Co. of New York, Inc.,

, 502–03 (1st

Dep’t 1993) (“The courts of this state have long held that, if an injury

or disease is covered in any way by Workers’ Compensation, recovery

at law for a particular type of damage resulting from that injury or

disease, even though not compensable, will also be barred.”

(emphasis added)); Huston v. Hayden Bldg. Maintenance Corp., 205

(2d Dep’t 1994) (“In our view the primary purpose of

the [NYLL] is to regulate conduct.”).

The NYWCL was adopted pursuant to a 1913 amendment to

New York’s constitution, which provided that the legislature could

“fix the right to compensation to be paid by an employer for death

resulting to an employee for injuries received in the course of his

employment,” and that “the right of such compensation, and the

remedy therefor shall be exclusive of all other rights and remedies.”

Shanahan v. Monarch Eng’g Co.,

, 475–76 (1916) (quoting

1913 constitutional amendment). When promulgating the NYWCL,

the New York legislature thereby created a scheme in which both

employer and employee “gained benefits and made concessions.”

.

As part of this tradeoff, the employee receives “the security of

knowing that fixed benefits will be paid,” but forgoes the possibility

of “a more substantial recovery through a jury award.” Dumervil v.

60 Port Auth. of N.Y. & N.J.,

, 629 (2d Dep’t 2018). The

employer is on the hook for “no-fault liability,” but is protected from

the “large damage verdicts which the statute was intended to

foreclose.” Reich v. Manhattan Boiler & Equip. Corp.,

(1998); see also Shanahan,

(noting that part of the

tradeoff between employers and employees includes an employer not

needing to defend against “unjust or excessive claims”).

In other words, the legislature was concerned primarily with

the predictability of monetary compensation when adopting the

NYWCL. See Werner v. State,

(1981) (“[T]he

obvious purpose of those provisions [is] to foreclose the possibility of

duplicative recoveries.”). 6 Had the legislature intended to extend the

NYWCL’s exclusivity provision to injunctive relief as well, it could

6 Here, there is no risk of duplicative recoveries because the Workmen’s Compensation Board cannot issue the remedy Plaintiffs seek—an injunction compelling Amazon to cease the conduct alleged as jeopardizing the health and safety of employees during the COVID-19 pandemic. See N.Y. Workers’ Comp. Law § 142 (outlining the Board’s “[g]eneral powers and duties”).

61 have so provided, and so altered the tradeoff for both employers and

employees. In the absence of such a statement from the legislature,

however, we decline to extend the exclusivity provision’s reach.

E. COVID-19 leave payments are not “wages” under NYLL § 191

Lastly, Plaintiffs cannot state a claim for a violation of NYLL

§ 191 because, as the district court correctly concluded, COVID-19

leave payments are not “wages” as defined by § 191.

NYLL § 191 outlines the frequency with which an employer

shall pay an employee “wages.” Wages are defined as “the earnings

of an employee for labor or services rendered, regardless of whether

the amount of earnings is determined on a time, piece, commission or

other basis.”

(1) (McKinney 2008). For purposes

of NYLL § 191, the term “wages” does not include “benefits or wage

supplements.” Id. Benefits or wage supplements include

“reimbursement for expenses; health, welfare, and retirement

benefits; and vacation, separation or holiday pay.” Id. § 198-c(2),

62 preempted on other grounds by

(3d Dep’t 2010). And New

York’s Leave Law “provid[es] requirements for sick leave and the

provision of certain employee benefits when such employee is subject

to a mandatory or precautionary order of quarantine or isolation due

to COVID-19.” 2020 N.Y. Sess. Laws ch. 25, § 1.1.(a) (McKinney).

Plaintiffs argue that excepting COVID-19 sick leave from NYLL

§ 191’s “frequency-of-pay provisions” for wages would undermine

the Leave Law’s purpose because the “[p]romise of wages at some

unspecified future date is unlikely to convince a potentially infected

worker to self-isolate if that worker is subsisting week-to-week.”

Plaintiffs Br. at 52. But the New York legislature, well aware that

NYLL § 191 explicitly excludes benefits or wage supplements from its

provisions, described the purpose of the Leave Law as “providing

requirements for sick leave and the provision of certain employee

benefits.”

.

Moreover, COVID-19 sick leave need not be subject to NYLL

63 § 191’s pay frequency requirements to serve as an “effective tool[] at

protecting public health.” Plaintiffs Br. at 51. Plaintiffs still have a

form of redress available under the Leave Law: they can file a

complaint with the New York Department of Labor (the “NYDOL”).

N.Y. State, Dep’t of Labor, COVID-19 Complaint,

https://forms.ny.gov/s3/Department-of-Labor-COVID-19-Complaint

(last visited October 14, 2022).

Plaintiffs next assert that COVID-19 sick leave payments are

“wages” for purposes of NYLL § 191 because the pay is a statutory

entitlement rather than an “ancillary benefit or wage supplement”

created by employment contract. Plaintiffs Br. at 54. As we explained

in Myers v. Hertz Corp., however, “plaintiffs may not use Labor Law

§ 191 to seek unpaid wages to which they claim to be entitled under a

statute; rather § 191 guarantees only that the wages the employer and

employee have ‘agreed’ upon be paid in a ‘timely’ manner again

according to the ‘terms of [the employee’s] employment.”

, 545 n.1 (2d Cir. 2010) (quoting

).

We also reject Plaintiffs’ contention that the district court

improperly ignored the NYDOL’s Frequently Asked Questions (the

“FAQ”) concerning COVID-19 sick leave. In pertinent part, the FAQ

explains that “[t]he paid COVID-19 sick leave payments are subject to

the frequency of pay requirements of Section 191.” N.Y. State, New

York Paid Family Leave COVID-19: Frequently Asked Questions

[hereinafter Paid Family Leave FAQs],

https://paidfamilyleave.ny.gov/new-york-paid-family-leave-covid-

19-faqs (last visited October 14, 2022). Plaintiffs apparently take this

to mean that COVID-19 sick leave payments are wages for purposes

of NYLL § 191. But as the State of New York explained in its amicus

brief, that FAQ is not guidance regarding NYLL § 191, but more a

“shorthand to explain that the new quarantine leave payments should

be made on the same schedule and in the same manner as wages

subject to Labor Law § 191.” State of New York, Amicus Curiae Br. at

65 24.

Even if the NYDOL’s FAQ page were a more formal,

authoritative agency pronouncement entitled to deference, it more

strongly suggests that COVID-19 leave payments are benefits, not

wages. The FAQ does not state that Leave Law payments are

“wages” as defined by § 191. Nor does the FAQ advise that an

employer violates § 191 if it fails to make Leave Law payments per

§ 191’s schedule. Rather, the FAQ suggests that COVID-19 leave

payments are benefits. In the very same FAQ upon which Plaintiffs

rely, the NYDOL titles a section “Benefits” and repeatedly uses the

word thereafter to explain what pay an individual is entitled to under

the Leave Law when subject to an order of quarantine or isolation.

See, e.g., Paid Family Leave FAQs (“How does this affect NY’s COVID-

19 quarantine leave benefits? . . . NY’s COVID-19 quarantine leave

benefits are only available during the order of quarantine or isolation.

. . . This new law provides benefits in cases where an individual is

66 under an order of quarantine – either mandatory or

precautionary. . . .” (emphasis added)).

Furthermore, in describing COVID-19 workplace regulations,

the NYDOL states the following:

Former Governor Cuomo enacted a law that provides benefits – including sick leave, paid family leave, and disability benefits – to New York employees impacted by the mandatory or precautionary orders of quarantine or isolation due to COVID-19. These benefits do not have an expiration date. If your employer does not comply with this law, you have the right to file a complaint.

N.Y. State, Dep’t of Labor, COVID-19 Paid Sick Leave,

https://dol.ny.gov (last visited October 14, 2022).

An agency’s interpretation of a statute “is entitled to great

deference, particularly when that interpretation has been followed

consistently over a long period of time.” United States v. Clark,

(1982). As the district court explained, the NYDOL has

consistently instructed that paid sick leave is a “benefit[]” and that

there is “‘no “correct” or prescribed method’ of provision or

payment.” App’x at 149–50.

67 Finally, Plaintiffs do not perform any labor at JFK8 while under

mandatory or precautionary COVID-19 quarantine or isolation.

Therefore, the payments Plaintiffs are entitled to receive under the

Leave Law cannot be “wages” under NYLL § 191. See

(1) (defining “wages” as “earnings for labor or services

rendered”). And because payments provided for under the Leave

Law are not “wages” for purposes of NYLL § 191, Plaintiffs do not

have a claim under NYLL § 191 for Amazon’s alleged violations of the

Leave Law.

III. CONCLUSION

In sum, we hold as follows:

(1) Plaintiffs’ public nuisance and NYLL § 200 claims are not

moot.

(2) The doctrine of primary jurisdiction does not apply to

Plaintiffs’ public nuisance or NYLL § 200 claims.

68 (3) Plaintiffs fail to state a claim for public nuisance under

New York law because they do not allege a special injury.

(4) Section 11 of the New York Workers’ Compensation Law

does not preclude injunctive relief under NYLL § 200.

(5) Leave Law payments are not “wages” for purposes of

NYLL § 191.

We therefore AFFIRM the district court’s dismissal of Plaintiffs’

public nuisance claim and NYLL § 191 claims for damages and

injunctive relief; and we VACATE the district court’s dismissal of

Plaintiffs’ NYLL § 200 claim seeking a declaratory judgment and

injunctive relief and REMAND to the district court for further

proceedings on that claim.

69 DENNY CHIN, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority's holdings that (1) Plaintiffs' public

nuisance and New York Labor Law ("NYLL") § 200 claims are not moot, (2) the

primary jurisdiction doctrine does not apply to those claims, (3) § 11 of the New

York Workers' Compensation Law does not preclude injunctive relief under

NYLL § 200, and (4) COVID-19 sick leave payments are not "wages" under NYLL

§ 191. I respectfully dissent, however, from the majority's conclusion that the

district court properly dismissed Plaintiffs' public nuisance claim. I would find

that the harm Plaintiffs faced was different in kind -- not just degree -- from that

faced by the community at large. Accordingly, I would conclude that Plaintiffs

adequately pleaded special injury to support their public nuisance claim.

Under New York law, "[a] cause of action for public nuisance 'exists

for conduct that amounts to a substantial interference with the exercise of a

common right,' such as 'endangering' the 'health or safety of a considerable

number of persons.'" Benoit v. Saint-Gobain Performance Plastics Corp.,

(2d Cir. 2020) (alterations omitted) (quoting 532 Madison Ave. Gourmet

Foods, Inc. v. Finlandia Ctr., Inc.,

(2001)). "A 'public nuisance is

actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large.'"

at 505 (quoting 532

Madison Ave. Gourmet Foods, Inc.,

). "The injury must be different

in 'kind,' not simply 'degree.'"

(quoting 532 Madison Ave. Gourmet Foods, Inc.,

); see Connecticut v. Am. Elec. Power Co., Inc.,

(2d

Cir. 2009) ("It is not enough that he has suffered the same kind of harm or

interference but to a greater extent or degree."), rev'd on other grounds,

(2011). As the majority acknowledges, however, a “[d]ifference in degree of

interference cannot . . . be entirely disregarded in determining whether there has

been difference in kind.” Restatement (Second) of Torts § 821C, cmt. c.

The majority observes that because all New Yorkers faced the risk of

contracting COVID-19, any injury suffered by Plaintiffs is one of a difference

only in degree, not in kind. I disagree. Plaintiffs are not alleging that the

generalized risk of contracting COVID-19 constitutes a public nuisance, but

rather that Amazon's conduct created a public nuisance that disproportionately

injured them. First, Plaintiffs faced heightened COVID-19 risks due to the

conditions of their employment. Second, they risked financial losses if they

dared to mitigate those conditions. The harms here -- employment conditions

and financial losses -- are different in kind from those the public faced because

2 the community at large was not subjected to the conditions that the workers at

JFK8 endured. The public at large did not even enter JFK8.

As alleged in the amended complaint (and assumed to be true for

purposes of this appeal), Plaintiffs faced conditions that significantly increased

their risk of contracting COVID-19 and were forced to face these heightened risks

under threat of discipline or termination. Amazon's demanding productivity

requirements at JFK8, an 840,000 square foot fulfillment center on Staten Island, 1

prevented workers from engaging in social distancing or basic hygiene and

sanitation practices. See, e.g., J. App'x at 108 ¶ 250 (workers "fear taking the time

to clean their stations for fear it will result in a writeup for [productivity] issues);

id. at 109 ¶ 253 (because of changes to employee break schedules, "bathroom

lines and break rooms are more crowded during the break time").

Moreover, Amazon implemented a contact-tracing plan that was

effectively inoperative, discouraged employees from informing their colleagues

if they had tested positive, and penalized workers who raised concerns about the

lack of COVID-19 safety protocols at the warehouse. See, e.g., J. App'x at 111

1 JFK8 operates 24 hours, seven days a week. On average, there are approximately 3,500 workers at one time, but during peak seasons around the holidays or Amazon Prime Day in July, this number can increase to 5,000 workers. See J. App'x at 88 ¶ 86; 127-28. 3 ¶ 280 (Amazon's contact tracing system consisted "entirely of reviewing

surveillance footage to monitor the workplace contacts of workers diagnosed

with COVID-19"); id. at 113 ¶ 290 (workers who tested positive were discouraged

from telling their coworkers and were given no guidance on how to "monitor

their health at home, quarantine when not at work, or to seek medical advice").

Though Amazon suspended the tracking requirements for the "total time off

task" ("TOT") system in March 2020, workers were not informed until July 2020.

See id. at 106 ¶¶ 232-33 (Amazon instructed managers "not to post the talking

points [about the change in TOT rate enforcement] publicly"). Until then, the

strict TOT system and the risk of termination forced Plaintiffs to continue

working in conditions that rendered them particularly susceptible to COVID-19.

See, e.g., id. at 107 ¶ 238 (the TOT system "forced [workers] to work at a frenzied

pace"); id. at 108 ¶ 245 (the productivity requirements "discourage[d] workers

from leaving their workstations to wash their hands and from taking the time to

wipe down their workstations").

Plaintiffs plausibly alleged that the threat of discipline or

termination if they failed to meet their productivity requirements kept them

confined to the hazardous environment inside JFK8. Warehouse workers were at

4 particular risk of contracting COVID-19. First, warehouses often contained

thousands of employees working in "cramped or tight spaces" at high work rates

and talking at elevated volumes to overcome the din of machinery. Br. of Amici

Curiae Occupational Health Physicians et al. in support of Plaintiff-Appellants

("Br. of Amici Curiae") at 3-4. Such conditions increased the risk of transmission

of an airborne virus such as COVID-19 because employees were discouraged

from leaving their workstations to sanitize themselves after each potential

exposure. Id. This heightened risk was exacerbated where, as here, workers

were deprived of preventative safety measures and were unable to easily access

sick leave, resulting in an increased risk of infecting their coworkers and families.

Plaintiffs lacked the autonomy to avoid the hazardous conditions

arising from Amazon's conduct. And unlike many members of the public,

Plaintiffs were not permitted to work remotely. If anything, because the demand

for packages increased during the pandemic, they had even less flexibility in that

respect. See, e.g., J. App'x at 88 ¶ 87 (Amazon said it hired 175,000 new workers

in April 2020, many of whom were "temporary workers hired to meet increased

demand during the pandemic").

5 At the end of each nearly 11-hour shift working under these

conditions, Plaintiffs would then take the increased risk of infection home to

their families. While Amazon may have created an indirect harm to the public in

the form of community spread, its practices directly endangered Plaintiffs in the

workplace and further endangered the communities with whom Plaintiffs

interacted. See Br. of Amici Curiae at 24. Plaintiffs Chandler and Bernard

contracted COVID-19 while working at JFK8, and Chandler's cousin, with whom

she lived, died during that time from the disease. The physical and emotional

injuries that followed were distinct from those the community faced because

they arose proximately from Amazon's conduct.

Plaintiffs also suffered economic harm not suffered by members of

the public because they faced loss of pay and sick leave. See, e.g., J. App'x at 92

¶¶ 120-24 (workers felt "increased pressure to attend work while sick" because

they feared losing the opportunity to accrue limited unpaid leave time); id. at 89

¶ 98 (Amazon retaliated against workers who spoke out about workplace safety

and COVID-19). New York courts have long recognized that economic harm can

be a sufficient special injury for a private plaintiff to maintain a public nuisance

claim. See 532 Madison Ave. Gourmet Foods, Inc.,

(private right of

6 action where public nuisance "had a devastating effect on [plaintiffs'] ability to

earn a living"). Further, "[o]n the matter of special damage . . . there is no

requirement that there be directness of such damage, or that there be any

particular quantum, before there is a right to a private remedy, such as

injunction." Graceland Corp. v. Consol. Laundries Corp.,

(1958), aff'd,

(1959). Defendants made it difficult for workers who

tested positive for COVID-19 to obtain sick leave and allegedly did not pay the

full amount of COVID-19 sick pay.

Constrained by the demanding requirements of the TOT system,

Plaintiffs were faced with an unenviable choice: continue working in a

dangerous and demanding work environment or avoid it to protect their health

but face a high likelihood of losing their jobs. Although it is true, as the majority

observes, that many New Yorkers suffered financial losses as a result of the

pandemic, the losses Plaintiffs allege are different in kind because they resulted

from Amazon's affirmative decisions not to implement any sufficient measures

to mitigate the high risk of COVID-19 transmission inherent in warehouse work.

See, e.g., Br. of Amici Curiae at 7 (due to "certain environmental design

characteristics that make social distancing difficult [in warehouses], . . . it [is] all

7 the more important that employers implement all mitigation measures to

prevent COVID-19 infection.").

Plaintiffs have thus plausibly pleaded special injury that they faced a

heightened risk of exposure to COVID-19 and threat of economic harm because

of conditions at JFK8. Thus, I would hold that the lower court erred in

dismissing Plaintiffs' public nuisance claim.

8