22-1801-cv(L)
New Yorkers for Religious Liberty v. City of New York


                                   In the
                       United States Court of Appeals
                          For the Second Circuit

                                      August Term 2022
                                  Argued: February 8, 2023
                                 Decided: November 13, 2024

                                     Nos. 22-1801, 22-1876



NEW YORKERS FOR RELIGIOUS LIBERTY, INC., GENNARO AGOVINO, CURTIS CUTLER,
LIZ DELGADO, JANINE DEMARTINI, BRENDAN FOGARTY, SABINA KOLENOVIC, KRISTA
ODEA, DEAN PAOLILLO, DENNIS PILLET, MATTHEW RIVERA, LAURA SATIRA, FRANK
    SCHIMENTI, JAMES SCHMITT, MICHAEL KANE, individually, and for all others
   similarly situated, WILLIAM CASTRO, individually, and for all others similarly
    situated, MARGARET CHU, individually, and for all others similarly situated,
HEATHER CLARK, individually, and for all others similarly situated, STEPHANIE DI
   CAPUA, individually, and for all others similarly situated, ROBERT GLADDING,
   individually, and for all others similarly situated, NWAKAEGO NWAIFEJOKWU,
 individually, and for all others similarly situated, INGRID ROMERO, individually,
  and for all others similarly situated, TRINIDAD SMITH, individually, and for all
 others similarly situated, AMARYLLIS RUIZ-TORO, individually, and for all others
   similarly situated, NATASHA SOLON, individually, and for all others similarly
                                       situated,

                                                                     Plaintiffs-Appellants,

 MATTHEW KEIL, JOHN DE LUCA, SASHA DELGADO, DENNIS STRK, SARAH BUZAGLO,
  BENEDICT LOPARRINO, JOAN GIAMMARINO, AMOURA BRYAN, EDWARD WEBER,
                          CAROLYN GRIMANDO,

                                                        Consolidated Plaintiffs-Appellants,
                                               V.


      CITY OF NEW YORK, ERIC ADAMS, ASHWIN VASAN, in his official capacity as
    Health Commissioner of the City of New York, NEW YORK CITY DEPARTMENT OF
                                    EDUCATION,

                                                                     Defendants-Appellees, *

                                     ROBERTA REARDON,

                                                                                 Defendant.



                       Appeal from the United States District Court
                          for the Eastern District of New York
                          No. 22-cv-752, Diane Gujarati, Judge.

                       Appeal from the United States District Court
                          for the Southern District of New York
                        No. 21-cv-7863, Naomi R. Buchwald, Judge.



                   Before:       JACOBS, LEE, AND PÉREZ, Circuit Judges.

        In August 2021, after almost a year and a half of rapid spread of COVID-19,
New York City’s Department of Education prepared to reopen its educational
facilities following the Food and Drug Administration’s full approval of a COVID-
19 vaccine. The City’s Commissioner of Health and Mental Hygiene then
instituted a requirement that all Department of Education staff and other City
employees and contractors working in person in school settings get vaccinated for
COVID-19. In the months and years since, the City—at times following legal
challenges requiring our intervention—updated and revamped its mandate policy



*   The Clerk of Court is respectfully directed to amend the official case caption accordingly.
                                               2
and religious exemption process. The two cases in this appeal present yet another
test of the constitutionality of the City’s approach.

       Appellants are New York City public sector employees challenging, both
facially and as applied, New York City’s COVID-19 vaccination mandates, as
amended pursuant to this Court’s prior directive in Kane v. De Blasio, 

(2d Cir. 2021). In the appeal from the Southern District of New York, Appellants
challenge the denial of a preliminary injunction and the dismissal of their
consolidated amended complaint on the merits. In the appeal from the Eastern
District of New York, Appellants challenge the denial of a similar preliminary
injunction motion.

        Given the overlapping nature of the claims and motions below, and the
relief sought on appeal, we consolidated our review of these cases. For the reasons
set forth herein, we AFFIRM IN PART and DISMISS IN PART the denials of
preliminary injunction, AFFIRM the dismissal of the facial challenges, and
AFFIRM IN PART and VACATE and REMAND IN REMAINING PART the
dismissal of the as-applied challenges.



FOR PLAINTIFFS-APPELLANTS:            JOHN J. BURSCH, Bursch Law PLLC,
                                      Caledonia, MI (Barry Black, Nelson Madden
                                      Black LLP, New York, NY; Sujata Sidhu
                                      Gibson, Gibson Law Firm PLLC, Ithaca, NY,
                                      on the brief).

FOR DEFENDANTS-APPELLEES:             SUSAN PAULSON (Richard Dearing, Devin
                                      Slack, on the brief), for Hon. Sylvia O. Hinds-
                                      Radix, Corporation Counsel of the City of
                                      New York, New York, NY.




                                        3
PER CURIAM:

      In August 2021, after almost a year and a half of rapid spread of COVID-19,

the Department of Education of New York City (“the City”) prepared to reopen its

educational facilities following the Food and Drug Administration’s full approval

of a COVID-19 vaccine. To combat the further spread of the virus as the City

returned to “normal,” the City’s Commissioner of Health and Mental Hygiene

instituted a COVID-19 vaccine requirement for all Department of Education staff

and other City employees and contractors working in person in school settings. In

the months and years since, the City—at times following legal challenges requiring

our intervention—updated and revamped both its mandate policy and religious

exemption process. The two cases consolidated in this appeal present yet another

test of the constitutionality of the City’s approach.

      Appellants are New York City public sector employees contesting the

constitutionality, both facially and as applied, of New York City’s COVID-19

vaccination mandates, as amended pursuant to this Court’s prior directive in Kane

v. De Blasio, 

 (2d Cir. 2021) (“Kane I”). In the appeal from the Southern

District of New York, Appellants challenge the denial of a preliminary injunction

based on a consolidated amended complaint and the dismissal of that complaint


                                          4
on the merits. In the appeal from the Eastern District of New York, Appellants

challenge the denial of a similar preliminary injunction motion.

      Given the overlapping nature of the proceedings below, and the relief

sought on appeal, we consolidated our review of these cases. For the reasons set

forth herein, we AFFIRM IN PART and DISMISS IN PART the denials of

preliminary injunctions, AFFIRM the dismissal of the facial challenges, and

AFFIRM IN PART and VACATE and REMAND IN REMAINING PART the

dismissal of the as-applied challenges.

                            I.      BACKGROUND

      The facts pertaining to this appeal are comprehensively set forth in our

November 28, 2021 per curiam opinion in Kane I, which concerned a challenge by

some of the same parties in this appeal of the Southern District’s initial denial of

their earlier motions to preliminarily enjoin enforcement of the City’s COVID-19

vaccination mandate (“Vaccine Mandate” or “Mandate”). See Kane I, 19 F.4th at

159–63. Accordingly, we assume the parties’ familiarity with the facts and record

of prior proceedings, which we summarize and reference only as necessary for

review of the instant appeal.




                                          5
A.    Our Prior Decision in Kane I

      In Kane I, we held that “[t]he Vaccine Mandate, in all its iterations, [wa]s

neutral and generally applicable.” 19 F.4th at 164. We also found that the Vaccine

Mandate’s exemption policy did not treat secular conduct more favorably than

comparable religious conduct. Id. at 166. Accordingly, we determined that the

Kane I appellants (a subgroup of the ones in this appeal) were not likely to succeed

in their argument that the Mandate was facially unconstitutional. Id. We therefore

refused to enjoin the Mandate pending litigation. Id.

      However, we made the “exceedingly narrow” determination that the Kane I

appellants were likely to succeed on their as-applied challenges based on the City’s

own admission of a potential defect in how it initially reviewed requests for

religious accommodations for and exemptions from the Mandate (the “Arbitration

Award Standards”). Id. at 167. Kane I arose from a teachers’ union challenge to

the Vaccine Mandate. Id. at 159–60. The union filed a formal objection to the

Mandate’s lack of medical or religious accommodations. Id. at 160. The dispute

went to arbitration, which led to an “Arbitration Award” granting an exemption

and accommodation request system that imposed standards “for determining . . .

religious accommodations to” the Mandate and an appeals process. Id. The



                                         6
Arbitration Award Standards provided that religious exemption “requests shall

be denied where the leader of the religious organization [to which the requestor

belongs] has spoken publicly in favor of the vaccine, . . . or where the objection is

personal, political, or philosophical in nature.” Id. at 168. In Kane I, we took issue

with this text because “[i]t is not within the judicial ken to question the centrality

of particular beliefs or practices to a faith, or the validity of particular litigants’

interpretations of [their] creeds.” Id. (quoting Hernandez v. Commissioner, 

 (1989)).

      Consequently, we kept in place directions from a previous motions panel of

this Court ordering the City to reconsider the Kane I appellants’ religious

accommodation requests “by a central citywide panel, which [would] adhere to

the standards of, inter alia, Title VII of the Civil Rights Act of 1964, rather than the

challenged criteria set forth in . . . the [A]rbitration [A]ward.” Id. at 162 (internal

quotation marks omitted). We also did not disturb the remainder of the motions

panel’s order.

B.    Developments Since Kane I

      After our decision in Kane I, the newly constituted City of New York

Reasonable Accommodation Appeals Panel (“Citywide Panel” or “Panel”)



                                           7
reviewed anew religious accommodation requests. In effect, the Citywide Panel

offered employees who had been denied a vaccination-related accommodation a

form of administrative appellate review. Each of the named plaintiffs who were

then a part of Kane I had their claims reviewed by the Citywide Panel. 1

      In December 2021, after learning the outcome of their appeals before the

Citywide Panel, the Kane I plaintiffs again filed a series of motions, including for a

preliminary injunction, largely on the same grounds as their initial challenge to

the Mandate. The Southern District denied all requests, but permitted the

plaintiffs to submit a consolidated amended complaint (“CAC”). The Kane I

plaintiffs filed an immediate interlocutory appeal of the denial of preliminary

injunction, and sought to enjoin the accommodation process of the Citywide Panel.

A panel of this Court denied the plaintiffs’ motion for a preliminary injunction

pending appeal and affirmed the district court’s decision in its entirety. Keil v. City

of New York, No. 21-3043-CV, 

, at *4 (2d Cir. Mar. 3, 2022)

(summary order) (“Keil”). We noted that because the Citywide Panel was not

applying the Arbitration Awards exemption standard, the arguments that the



1 Plaintiffs-Appellants Carolyn Grimando, Joan Giammarino, Benedict LoParrino,
Edward Weber, Amoura Bryan, and Natasha Solon joined this litigation after the prior
appeal in Kane I.
                                         8
plaintiffs in Keil advanced were largely irrelevant to consideration of the

preliminary injunction motion concerning the new Citywide Panel. Id. at *2. In

their later-submitted CAC in the Southern District, the plaintiffs then contested the

constitutionality of the new Citywide Panel’s process and determinations. See

Kane v. De Blasio, 

 (S.D.N.Y. 2022) (Buchwald, J.) (“Kane II”).

The instant appeal stems from proceedings following the filing of the CAC.

      Around the same time, a set of plaintiffs in the Eastern District of New York,

largely represented by the same attorneys representing the Keil plaintiffs, also

challenged the Vaccine Mandate. See generally Complaint, New Yorkers for Religious

Liberty, Inc. v. City of New York, No. 22-CV-752 (E.D.N.Y. Feb. 10, 2022), ECF No. 1

(Gujarati, J.) (“NYFRL”).    The NYFRL plaintiffs principally made the same

arguments and sought the same relief as the Keil plaintiffs.

      The Southern District eventually dismissed the Keil CAC with prejudice.

And both the Southern and Eastern Districts denied the respective motions for

preliminary injunction before them.

C.    The District Courts’ Decisions

      In their dispositions, both district courts relied on our decisions in Kane I

and Keil. In the Eastern District, Judge Gujarati reasoned that the NYFRL plaintiffs



                                         9
were unlikely to succeed on the merits of their First Amendment claims and that

they failed to show irreparable harm because (1) there was no First Amendment

right to an exception from a requirement that public employees get vaccinated to

retain their jobs; and (2) adverse employment consequences are generally not

irreparable harms. 2 See Transcript of Oral Argument at 40–41, New Yorkers for

Religious Liberty, Inc. v. City of New York, No. 22-CV-752 (E.D.N.Y. Aug. 11, 2022),

ECF No. 116 (denying preliminary injunction from the bench). In the Southern

District, Judge Buchwald denied the Keil plaintiffs a preliminary injunction for

largely the same reasons.

      In addition, Judge Buchwald rejected the facial challenges to the Mandate

by the Keil plaintiffs on the merits as having been largely resolved by Kane I. She

concluded that “statements [regarding religion] made by City and State officials,”

raised again in the CAC, do not establish “evidence of animus,” attributable to

those individuals personally, or to the State more generally. Kane II, 623 F. Supp.

3d at 355.




2The district court stayed action on the underlying complaint in the Eastern District
pending this appeal of the denial of the preliminary injunction.
                                         10
      On the Keil plaintiffs’ as-applied claims, Judge Buchwald found that the

subset of plaintiffs who had not “avail[ed] themselves of the [amended Citywide

Panel] process for seeking a religious exemption” could not challenge that process

as unconstitutional. Id. at 362. As to the plaintiffs who did go through the

Citywide Panel process, she found their allegations too conclusory to state a claim.

For the majority of those individuals, the Citywide Panel found it would be an

“undue hardship” to accommodate them given the nature of their job functions.

Id. at 363. The district court stated that the Panel’s findings as to this group of

plaintiffs “satisfied the requirements of Title VII,” and thus the standards

articulated in Kane I. Id. Judge Buchwald noted that only plaintiff Heather Clark’s

case turned on the Panel’s conception of whether Clark had a “sincere religious

belief.” Id. at 362. Nonetheless, she determined the Panel’s denial was proper with

respect to Clark because it found that Clark had sought an accommodation due

not to her religious beliefs, but to her beliefs about what “non-religious sources”

said about the vaccine. Id. at 362 n.30.

      This consolidated appeal of both cases followed.




                                           11
                              II.      DISCUSSION

      Appellants now ask us to review the denials of preliminary injunction, and

the rejection of their facial and as-applied challenges to the Vaccine Mandate and

the Citywide Panel’s accommodation process for alleged violations of the Free

Exercise and Establishment Clauses. We address each issue in turn.

A.    Standard of Review

      “We review a district court’s denial of a preliminary injunction for abuse of

discretion, examining the legal conclusions underpinning the decision de novo and

the factual conclusions for clear error.” Green Haven Prison Preparative Meeting of

Religious Soc’y of Friends v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 

 (2d Cir. 2021).

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

‘accepting as true all factual claims in the complaint and drawing all reasonable

inferences in the plaintiff’s favor.’” Henry v. County of Nassau, 

 (2d

Cir. 2021) (quoting Fink v. Time Warner Cable, 

, 740–41 (2d Cir. 2013)).

To survive a motion to dismiss, a complaint must allege “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

 (2007). “A claim is plausibly alleged ‘when the plaintiff pleads factual content



                                           12
that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.’” Matzell v. Annucci, 

 (2d Cir. 2023)

(quoting Ashcroft v. Iqbal, 

 (2009)).

B.    Denials of Preliminary Injunction

      This is the third time that we sit in review—in one form or another—of

motions seeking preliminary injunction against New York City’s Vaccine

Mandates. Regarding the current version of this challenge, we dismiss as moot

the request for relief in the form of recission of the Vaccine Mandate, and we deny

on the merits the request for preliminary injunctive relief in the form of

reinstatement and backpay.

      1.     Recission of the Vaccine Mandate

      We conclude that Appellants’ request to rescind the Vaccine Mandate is

moot. “When the issues in dispute between the parties are no longer live, a case

becomes moot, . . . and the court—whether trial, appellate, or Supreme—loses

jurisdiction over the suit, which must be dismissed[.]” Lillbask ex rel. Mauclaire v.

State of Conn. Dept. of Educ., 

, 84 (2d Cir. 2005) (internal citations and

quotation marks omitted). “A case becomes moot ‘when it is impossible for a

court to grant any effectual relief whatever to the prevailing party.’” Conn.



                                          13
Citizens Def. League, Inc. v. Lamont, 

 (2d Cir. 2021) (quoting

Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., 

 (2d. Cir. 2020)).

      It is true that modification or withdrawal of a COVID-19 restriction during

the course of litigation does not necessarily moot the case. See Tandon v. Newsom,

 (2021) (holding that where litigants “‘remain under a constant

threat’ that government officials will use their power to reinstate the challenged

restrictions,” they remain entitled to seek emergency injunctive relief (quoting

Roman Catholic Diocese of Brooklyn v. Cuomo, 

 (2020))). But in order

to escape a mootness dismissal, a plaintiff still must demonstrate a reasonable

expectation of repetition that is “more than a mere physical or theoretical

possibility.” Lillbask ex rel. Mauclaire, 397 F.3d at 86 (internal quotation marks

omitted).

      Here, the City officially rescinded the Mandate on February 10, 2023—after

we heard oral argument in these cases—and there is no evidence to suggest that

Appellants have a reasonable expectation that is more than theoretical of its

reinstatement. Accordingly, as numerous other circuits have concluded with




                                           14
regard to rescinded COVID-19-related restrictions, the request for recission of the

Mandate is now moot. 3

       2.     Reinstatement and Backpay

       Appellants’ request for preliminary injunctive relief in the form of

reinstatement and backpay fails on the merits.

       “When a preliminary injunction will affect government action taken in the

public interest pursuant to a statute or regulatory scheme, the moving party must

demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of



3 See, e.g., Brach v. Newsom, 

 (9th Cir. 2022) (finding moot a challenge to

California’s suspension of in-person instruction in K-12 schools in 2020–2021 because
“there [was] no longer any state order for the court to declare unconstitutional or enjoin”
and because the potential reimposition of such restrictions in the future was
“speculative”); Resurrection School v. Hertel, 

 (6th Cir. 2022) (en banc)
(finding moot a challenge to a statewide mask mandate repealed nearly a year prior
because there was “no reasonable possibility” that the state would reimpose a mask
mandate in the future); Lighthouse Fellowship Church v. Northam, 

 (4th Cir.
2021) (declaring a challenge to several state executive orders moot where “there [was]
simply no reasonable expectation” that the appellant would again be subjected to
executive orders restricting public and private gatherings, after they had expired and the
state of emergency related to the COVID-19 pandemic had been lifted); Cnty. of Butler v.
Gov. of Penn., 

, 229–30 (3d Cir. 2021) (finding moot a challenge to three state
directives—stay-at-home orders, business closure orders, and orders setting
congregation limits in secular settings—based on changed circumstances, including the
state of the COVID-19 pandemic and the expiration of the challenged orders); Hawse v.
Page, 

 (8th Cir. 2021) (finding moot a challenge to a public health order
limiting the number of people who could gather in a single room or space because “it
[was] absolutely clear that the County’s disputed conduct could not reasonably be
expected to recur” and “litigation over a defunct restriction” could not “present a live
controversy in perpetuity”).
                                            15
success on the merits, and (3) public interest weighing in favor of granting the

injunction.” Kane I, 19 F.4th at 163 (quoting Agudath Isr. of Am. v. Cuomo, 

, 631 (2d Cir. 2020)). However, “[i]n government personnel cases, like this one,

we apply a particularly stringent standard for irreparable injury and pay special

attention to whether the interim relief will remedy any irreparable harm that is

found.” 

 (internal quotation marks omitted). “[E]xcept in a ‘genuinely

extraordinary situation,’ irreparable harm is not shown in employee discharge

cases simply by a showing of financial distress or difficulties in obtaining other

employment.” Am. Postal Workers Union v. USPS, 

, 721 (2d Cir. 1985)

(quoting Sampson v. Murray, 

, 92 n.68 (1974)). Thus, “the injuries that

generally attend a discharge from employment—loss of reputation, loss of income

and difficulty in finding other employment—do not constitute the irreparable

harm necessary to obtain a preliminary injunction.” Guitard v. U.S. Sec’y of Navy,

 (2d Cir. 1992).

      In Kane I, we nevertheless found irreparable harm because “‘the threat of

permanent discharge’ can cause irreparable harm in the First Amendment

context.” 19 F.4th at 170 (quoting Am. Postal Workers Union, 766 F.2d at 722). And

importantly, because the appellants had “demonstrated that they were denied


                                        16
religious accommodations . . . and were consequently threatened with imminent

termination if they did not waive their right to sue,” id. at 169–70, we preliminarily

enjoined the City from terminating the appellants or requiring them to opt into

the extended leave program pending reconsideration of their religious

accommodation requests. Id. at 162–63.

      At the same time, we underscored that our determination did “not cast

doubt on the well-established principle that loss of employment does not usually

constitute irreparable injury.” Id. at 170 n.18 (emphasis and internal quotation

marks omitted) (quoting Does 1-6 v. Mills, 

 (1st Cir. 2021)).

Consequently, we still denied the Kane I appellants’ request for “an injunction

immediately reinstating [plaintiffs] and granting them backpay pending” new

“consideration of their requests for religious accommodations” because they had

“not shown they would suffer irreparable harm absent this broader relief.” 

; see also id. at 171 (“[W]hen irreparable harm arises not from an interim

discharge but from the threat of permanent discharge a preliminary injunction is

inappropriate because harm would not be vitiated by an interim injunction.”

(internal quotation marks and alterations omitted)).




                                         17
      Turning to the instant appeal, as of the time of briefing, “all but four of the

[thirteen] NYFRL” plaintiffs “and three of the [nineteen] Kane” plaintiffs “ha[d]

been terminated or forced to resign.” Appellants’ Br. at 19. The only ones who

had not been terminated were either “accommodated” or chose to get

“vaccinated.” Appellees’ Br. at 1. Appellants argue their irreparable harm was

the ongoing “coercive condition” of the Mandate because the City “continue[d] to

offer new ‘last chances’ for terminated employees to be reinstated if they [received]

the vaccine.” Appellants’ Br. at 96. Appellants argue that the City’s actions

imposed a “condition[] on [a] public benefit[]” that “dampen[s] the exercise of

[their] First Amendment rights,” which they say rises to the level of irreparable

injury. Id. (alterations omitted) (quoting Elrod v. Burns, 

, 358 n.11

(1976)).

      However, Appellants filed the at-issue motions for preliminary injunctions

after they were terminated. Therefore, they cannot show the “specific present

objective harm or a threat of specific future harm” required of them. Laird v.

Tatum, 

 (1972). Appellants’ reliance on the Supreme Court’s decision

in Elrod for the proposition that ongoing irreparable harm can exist post-

termination is inapt. See, e.g., Appellants’ Reply Br. at 7 (“Most of the Elrod


                                        18
plaintiffs were already terminated for failing to comply with a coercive condition

when they sought a preliminary injunction.”). Although it is true that most Elrod

plaintiffs had already been terminated, the Elrod Court did not find irreparable

harm as to the post-termination plaintiffs. It found irreparable harm only for “one of

the respondents [who] was . . . threatened with discharge” and other “class

respondents . . . threatened with discharge or [who] had agreed to provide support

for the Democratic Party in order to avoid discharge.” Elrod, 

.

Because harm for these still-employed plaintiffs was “both threatened and

occurring at the time of [their] motion” for a preliminary injunction, these plaintiffs

could demonstrate irreparable harm. 

 (emphasis added). Elrod instructs

that because Appellants here had already been terminated at the time of their

preliminary injunction motions, they were not suffering ongoing harms or threats

of harm.    Having already been discharged, their harm is compensable, not

irreparable. Therefore, we deny Appellants’ request for injunctive relief in the form

of reinstatement and backpay.

C.    Dismissal of Facial Challenges in the Consolidated Amended Complaint

      The Keil Appellants’ facial challenges to the Citywide Panel system under

the Establishment and Free Exercise Clauses fail because Appellants have offered



                                         19
no more than conclusory allegations that the Citywide Panel was applying

unconstitutional standards or was infected with religious animus.

      1.     Free Exercise Challenge

      The First Amendment provides: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.

amend. I. This guarantee is incorporated against the states via the Fourteenth

Amendment. See Cantwell v. Connecticut, 

 (1940). “The free

exercise of religion means, first and foremost, the right to believe and profess

whatever religious doctrine one desires.” Employment Div., Dep’t of Human Res. v.

Smith, 

 (1990).     “The Free Exercise Clause thus protects an

individual’s private right to religious belief, as well as ‘the performance of (or

abstention from) physical acts that constitute the free exercise of religion.’” Kane

I, 19 F.4th at 163–64 (quoting Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of

Health & Mental Hygiene, 

 (2d Cir. 2014)). “This protection,

however, ‘does not relieve an individual of the obligation to comply with a valid

and neutral law of general applicability.’” 

 at 164 (quoting Smith, 

). For purposes of a facial claim, a “law that is facially neutral [may] still run

afoul of the neutrality principle if it ‘targets religious conduct for distinctive



                                          20
treatment.’” 

 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

 (1993)). We previously determined that the City’s “Vaccine Mandate,

in all its iterations, [wa]s neutral[,] generally applicable,” and facially

constitutional under the Free Exercise Clause. 

 That holding from Kane I

remains binding against Appellants’ facial Free Exercise Clause challenge.

      2.     Establishment Clause Challenge

      That leaves Appellants’ facial Establishment Clause challenge.              The

Establishment Clause prevents the enactment of laws that have the “purpose” or

“effect” of “advancing or inhibiting religion.” Agostini v. Felton, 

, 222–

23 (1997) (affirming that “we continue to ask whether the government acted with

the purpose of advancing or inhibiting religion” and “whether the aid has the

‘effect’ of advancing or inhibiting religion”). Laws that “grant[] a denominational

preference” by preferring one religion over another violate the Establishment

Clause, too. Larson v. Valente, 

 (1982). Appellants argue that

the Citywide Panel system violates the Establishment Clause both by privileging

some religious beliefs over others and by being infected with religious animus.

We reject both contentions.




                                          21
       At oral argument, Appellants asserted that the Citywide Panel effectively

continued to have multiple tracks for handling appeals from members of different

faiths and therefore that certain faiths received preferential treatment over others.

But the CAC pleads no facts about this. At best, the only relevant allegations are

statements by the City’s former mayor, which predate Kane I and the existence of

the Citywide Panel. See, e.g., App’x at 80, 94–95 (stating that “Mayor de Blasio”

said in “press briefings . . . that the City would be openly preferencing Christian

Scientists,” and that the Arbitration Award Standards enjoined in Kane I would

provide exemptions only “for recognized and established religious organizations

(e.g., Christian Scientists)”).

       Even if these allegations in the CAC demonstrated an Establishment Clause

issue with the now-stricken Arbitration Award Standards, Appellants have failed

to allege an Establishment Clause violation with respect to the Citywide Panel or

the City’s current processes, which were implemented after our remand in Kane I.

There, we rejected the assertion that certain government officials’ statements

purportedly preferring certain faiths were relevant to the neutrality of the

Mandate and exemption standards under the First Amendment. Kane I, 19 F.4th

at 165 n.13 (“While Mayor de Blasio said that only Christian Scientists and


                                         22
Jehovah’s Witnesses could receive religious accommodations, the City has granted

accommodations to members of many other faiths.”); id. at 165 (finding that Mayor

de Blasio’s statements “reflect nothing more than the Mayor’s personal belief that

religious accommodations will be rare” and that he “did not have a meaningful

role in establishing or implementing the Mandate’s accommodations process”); see

also We the Patriots, 

, 283 (2d Cir.), op. clarified 

 (2021)

(“Governor Hochul’s expression of her own religious belief as a moral imperative

to become vaccinated cannot reasonably be understood to imply an intent on the

part of the State to target those with religious beliefs contrary to hers[.]”).

Ultimately, these statements were made before the Panel process was even

contemplated. And crucially, Appellants do not plead any tangible connection

between the statements and the Panel’s processes.         For these reasons, the

statements are not relevant to our assessment of the Citywide Panel process.

      Appellants assert that the Citywide Panel failed to abide by the Kane I

standards, but their CAC fails to include any well-pleaded factual allegations to

support this argument. Rather, all the CAC pleads in this regard are conclusions

unsupported by facts. See Vullo, 49 F.4th at 713 (“To determine whether a claim is

plausible, we must separate the complaint’s factual allegations from its


                                        23
conclusions and then determine whether the remaining well-pleaded factual

allegations plausibly allege entitlement to relief.”). For example, the CAC states

that although “the Citywide Appeals Panel was supposed to apply standards” as

set forth in Kane I, which “includ[e] . . . the standards established by Title VII,” “the

Citywide Appeals Panel did not apply these standards, and is simply using this

‘fresh look’ process to try and justify their original unlawful discriminatory

suspensions in bad faith.” App’x at 112. These legal conclusions are insufficient

to state a claim and cannot carry Appellants past a motion to dismiss. See Twombly,

 (noting that “courts are not bound to accept as true a legal

conclusion couched as a factual allegation” (internal quotation marks omitted)).

      The CAC also alleges only legal conclusions regarding the reasoning

provided by the Citywide Panel for its religious accommodation denials.

Appellants received an email response following their request for more

information about why each Keil plaintiff who appealed to the Panel was denied.

Appellants assert that, “[u]pon information and belief, the[] ‘reasons’ [provided

by DOE Attorneys] were an afterthought” and a “sham.” App’x at 113. But a

“litigant cannot merely plop ‘upon information and belief’ in front of a conclusory

allegation and thereby render it non-conclusory.” Citizens United v. Schneiderman,


                                           24


 (2d Cir. 2018). These allegations, too, fail to satisfy Appellants’

pleading burden.

      In fact, contrary to Appellants’ conclusory allegation that the Citywide

Panel “rubber-stamped,” App’x at 226, the previous denials in “bad faith,” id. at

112, the CAC alleges that the Citywide Panel frequently credited the personal

religious beliefs about vaccination held by Appellants of different faiths. 4

      Because the CAC asserts no facts to suggest that the Citywide Panel

preferred certain religions over others or was infected with religious animus, we

affirm the district court’s dismissal of the facial challenge.




4 See, e.g., App’x at 277 (reversing denial of accommodation request because Appellant
William Castro, of unspecified Christian faith, “has sufficiently established that he holds
sincerely held religious beliefs, of which he and his family have consistently adhered to,
that require [him] to abstain from vaccination”); id. at 275 (finding that Appellant
Nwakaego Nwaifejokwu, of unspecified faith, “holds sincerely held religious beliefs
sufficient to justify a reasonable accommodation” but finding that accommodating the
classroom teacher would present an “undue hardship”); id. at 276 (finding that Appellant
John De Luca, a Catholic, “holds sincerely held religious beliefs sufficient to justify a
reasonable accommodation,” but finding that accommodating the classroom teacher
would present an “undue hardship”); id. at 273 (reflecting the finding of the one panelist
who reached the question that Appellant Matthew Keil, a Russian Orthodox Christian,
“articulated a sincerely held religious belief that precludes vaccination,” but that all
panelists agreed that accommodating the classroom teacher would present an “undue
hardship”); id. at 154 (granting Appellant Amaryllis Ruiz-Toro, a member of a “minority
church[],” a religious accommodation under the Exemption Standards). These
statements undermine Appellants’ contention that the Citywide Panel preferred certain
religions over others or treated religion with hostility broadly.
                                           25
D.    Dismissal of As-Applied Challenges in the Consolidated Amended
      Complaint

      The Keil Appellants also challenge the district court’s dismissal of their as-

applied claims. They contend that the denial of their religious accommodation

requests violated their First Amendment rights either because the City failed to

show that it would suffer an undue hardship, or inappropriately preferred some

religious beliefs over others.

      Whether an applicant has a (1) sincere and (2) religious belief regarding

vaccination are questions of fact that are subject to examination when an

employment accommodation is sought. However, we do not “sit in judgment on

the verity of an adherent’s religious beliefs.” Patrick v. LeFevre, 

(2d Cir. 1984). Rather, our task is “to determine whether religious beliefs are

‘sincerely held.’” Jackson v. Mann, 

 (2d Cir. 1999). Importantly,

“[l]ocal boards and courts . . . are not free to reject beliefs because they consider

them ‘incomprehensible.’” United States v. Seegar, 

, 184–85 (1965). In

other words, the Citywide Panel could deny accommodations if it concluded a

claimant was not personally devout in the belief underlying the objection, but it

could not deny accommodations because it cast judgment on the nature of the




                                         26
religious objection raised. We assess on review whether the Citywide Panel

engaged in the appropriate task.

      Further, under Title VII “when an employee has a genuine religious practice

that conflicts with a requirement of employment,” the employer typically must

offer the employee a “reasonable accommodation, unless doing so would cause the

employer to suffer an undue hardship.” Cosme v. Henderson, 

 (2d

Cir. 2002) (emphasis added). “An accommodation is said to cause an undue

hardship whenever it results in ‘more than a de minimis cost’ to the employer.”

Baker v. The Home Depot, 

 (2d Cir. 2006) (quoting Trans World

Airlines, Inc. v. Hardison, 

 (1977)).

      For the reasons below, we find that most of the appellants have also failed

to state plausible as-applied claims, with the exceptions of Natasha Solon and

Heather Clark.

      1.     The Claims of Buzaglo, Delgado,5 Di Capua, Romero, Smith, and
             Strk

      We start with the six Appellants who have stated constitutional claims

arising from the denial of their requested accommodations, on the basis of undue




5This Section refers to Sasha Delgado, an individual whose accommodation request was
reheard by the Citywide Panel, not Liz Delgado, another Plaintiff-Appellant.
                                            27
hardship to the City. 6 “Because Plaintiffs have not established, at this stage, that

they are likely to succeed in showing that the Vaccine Mandate [wa]s not neutral

or generally applicable on its face, rational basis review applies.” Kane I, 19 F.4th

at 166. For the reasons below, these Appellants have failed to state claims.

      For each of these Appellants, the Citywide Panel found that, irrespective of

their sincerely held religious beliefs, their requests presented an “undue hardship”

because each individual “is a classroom teacher who, under the present

circumstances, cannot physically be in the classroom while unvaccinated without

presenting a risk to the vulnerable and still primarily unvaccinated student

population.”     App’x at 273–77.       None of these plaintiffs can make out a

constitutional claim for religious discrimination without first making a more-than-

conclusory allegation that the finding of undue hardship was erroneous or

pretextual. See Vega v. Hempstead Union Free Sch. Dist., 

 (2d Cir.

2015). This is necessary to survive the low threshold of rational basis review. See

Kane I, 19 F.4th at 166.




6Other Appellants’ requests for religious accommodations were also denied by the Panel;
however, the CAC either does not challenge those decisions, or otherwise fails to offer
any non-conclusory allegations that the denials were related to the Appellants’ religious
beliefs. Accordingly, we affirm the dismissal of their as-applied constitutional claims.
                                           28
      The CAC on its face identifies the Panel’s undue-hardship rationale, but

does not plead allegations that contradict that finding. Instead, the CAC offers

only threadbare conclusions. See, e.g., App’x at 147 (“Ms. Smith does not pose a

direct threat to anyone based on her vaccine status[.]”); App’x at 138 (Di Capua’s

conclusory allegation that “she poses no direct threat to anyone”). As a result, the

district court properly dismissed their religious accommodation claims on that

basis. 7 Cf. Iowa Pub. Emps.’ Ret. Sys. v. MF Glob., Ltd., 

 (2d Cir.

2010) (explaining that an “affirmative defense may be raised by a pre-answer

motion to dismiss under Rule 12(b)(6) . . . if the defense appears on the face of the

complaint” (quoting Pani v. Empire Blue Cross Blue Shield, 

 (2d Cir.

1998))); see Lowman v. NVI LLC, 

, 31–32 (2d Cir. 2020) (summary

order) (affirming the dismissal of a complaint based on undue hardship where the

requested accommodation would violate federal law).



7The First Circuit similarly affirmed dismissal of a case last year concerning individuals
fired for refusing to comply with vaccine mandates where the plaintiffs did not plead
facts to challenge the undue-hardship determination. See Lowe v. Mills, 

(1st Cir. 2023) (“The plaintiffs assert generally that whether their requested
accommodation would constitute an undue hardship is a question of fact not suitable for
determination on a motion to dismiss. As discussed above, however, we conclude that
the complaint’s allegations and the relevant Maine law permit no reasonable inference
but that granting the plaintiffs their requested accommodation would have exposed the
Providers to a substantial risk of license suspension and other penalties, creating an
undue hardship.” (internal quotation marks omitted)).
                                           29
      Accordingly, we affirm the dismissal of the as-applied challenges by these

six Appellants who were denied an accommodation on the ground of undue

hardship. We now turn to the as-applied challenges to the dismissal of claims on

grounds other than undue hardship.

      2.    Solon’s Claim

      The district court dismissed Solon’s claim as moot because she decided to

obtain the vaccine and has since been reinstated without backpay. Solon argues

she remains entitled to backpay for the time she was suspended. We agree that

Solon has stated a claim that is not moot.

      Crediting Solon’s allegations at this stage, we conclude that she was denied

a religious exemption under the initial Arbitration Award process despite her

longstanding objection to most medical treatments, including vaccines. Solon has

pleaded that she left her prior church and “rel[ies] on her personal relationship

with God as a guide.” App’x at 150. After the formation of the Panel, Solon did

not receive fresh review because she chose to receive the vaccine.

      If Solon’s initial, denied exemption application reflected her purely personal

religious practices, then she has plausibly pleaded that she was improperly denied

an accommodation because the old Arbitration Award Standards only allowed



                                        30
“exemption requests . . . for recognized and established religious organizations,”

and did not honor exemptions for those whose “religious beliefs were merely

personal.” Kane I, 19 F.4th at 168 (internal quotation marks omitted). That could

present a First Amendment problem.            As we previously determined, the

Arbitration Award Standards under which Solon was suspended were very likely

unconstitutional.    See id. at 168 (“[T]he government, if it is to respect the

Constitution’s guarantee of free exercise, cannot impose regulations that are

hostile to the religious beliefs of affected citizens and cannot act in a manner that

passes judgment upon or presupposes the illegitimacy of religious beliefs and

practices.” (quoting Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 

, 638 (2018))).

      The fact that Solon has now been reinstated does not necessarily erase every

injury she alleges. She has plausibly pleaded that she was potentially subjected to

an unconstitutional government action resulting in injury for which she has yet to

receive recompense. See App’x at 150–51 (alleging that Solon’s home went into

foreclosure while she was suspended without pay). Furthermore, the pleadings

and documents incorporated within the CAC do not indicate that the City ever

denied Solon’s accommodation request on the independent ground of undue


                                         31
hardship. Regardless of whether Solon ultimately prevails on the merits, she does

not “lack a legally cognizable interest in the outcome” of her claims at this stage.

Tann v. Bennett, 

 (2d Cir. 2015) (quoting Blackwelder v. Safnauer, 

 (2d Cir. 1989)). Therefore, the district court erred by dismissing her

claim as moot when backpay remains an available remedy for her alleged

wrongful suspension.

         Accordingly, we vacate the district court’s dismissal of Solon’s as-applied

claim.

         3.    Clark’s Claim

         Heather Clark has also stated a First Amendment claim at this stage. She

has pleaded that the Citywide Panel dismissed some of her religious beliefs as too

idiosyncratic to be religious in nature.       This, of course, would be the same

constitutional problem as presented in Kane I—and similar to why Solon stated a

claim for backpay. That is, Clark pleaded the denial of a religious accommodation

on the ground that a person’s religious beliefs are too personal to count as properly

religious. See 19 F.4th at 168.

         The CAC provides a sufficient basis to infer that Clark was wrongfully

denied a religious accommodation. The CAC pleads that the Citywide Panel



                                          32
rejected her appeal because it “character[ized]” Clark’s receiving “guidance from

the Holy Spirit as . . . allow[ing] Ms. Clark to follow individualized guidance,” and

thus concluded that Clark’s beliefs were not “religious in nature.” App’x at 135.

Consistent with Clark’s allegations, see id. at 134–35, the documents Clark

submitted to the Citywide Panel describe a religious objection to the vaccine

because it is a product of development using fetal cell lines and a “differing

substance[]” that she may not ingest consistent with her faith. Exhibit A to

Declaration of Heather Clark at 1–2, Kane II, 

 (S.D.N.Y. 2022),

(No. 21-cv-7863), ECF No. 128-1. Nevertheless, the district court dismissed Clark’s

claim because “the [Citywide] panel found that her decision to not receive a

vaccin[e] was not based on her religious belief, but rather, on nonreligious

sources,” a conclusion the district court deemed “entirely proper . . . under Title

VII.” Kane II, 623 F. Supp. 3d at 362 n.30. While such a conclusion could indeed

be proper and constitutional if the Citywide Panel had a basis for reaching it,

Clark’s allegations support the plausible inference that the Panel denied her

request solely on the basis of its characterization of her religious objection as too

idiosyncratic rather than as not sincerely held or non-religious in nature.




                                         33
         Given this possibility, Clark has stated a cognizable as-applied claim at this

stage.

                             III.      CONCLUSION

         For the foregoing reasons, we DISMISS the request for injunctive relief in

the form of recission as moot, and we AFFIRM the district court’s denial of

injunctive relief in the form of reinstatement and backpay. Further, we AFFIRM

the dismissal of the facial First Amendment challenges, and AFFIRM in part the

dismissal of the as-applied challenges. Finally, we VACATE and REMAND the

case to the Southern District of New York for further proceedings consistent with

this opinion as it relates to Appellants Solon and Clark, making clear that the

district court may proceed as circumstances and further development of the record

may require, and that we have not commented today on the merits of any stated

claims.




                                           34