Plaintiffs' pre-conference letter on preliminary injunction disputes (Feb. 7, 2021) — Agudath Israel v. Cuomo (2d Cir.)

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Troutman Pepper Hamilton Sanders LLP 
875 Third Avenue 
New York, New York  10022 
troutman.com 
Avi Schick 
avi.schick@troutman.com 
February 7, 2021 
VIA ECF 
The Honorable Kiyo A. Matsumoto 
United States District Court for the Eastern District of New York  
225 Cadman Plaza East 
Brooklyn, NY  11201 
Re: 
Agudath Israel of America, et al. v. Andrew M. Cuomo, No. 1:20-cv-4834 (E.D.N.Y.)
Dear Judge Matsumoto: 
Plaintiffs respectfully submit this letter in advance of tomorrow’s status conference in an 
effort to help focus on the few areas of disagreement regarding the preliminary injunction order. 
1. Defendant’s February 5 letter requests that the Court delete the sentence that Defendant 
does not contend that the 25% and 33% capacity limits on houses of worship in Executive 
Order 202.68 are narrowly tailored, and cannot satisfy strict scrutiny. Yet in three separate 
letters o this Court last week, Defendant wrote to make that very point:  

On February 2, Defendant wrote that “In light of the decisions made in this case 
by this Court and the appellate courts that have considered it, Defendant Cuomo 
does not oppose the entry of a preliminary injunction . . . .  Defendant believes 
that his stated position herein obviates the need for the February 8, 2021 
hearing.”  Dkt. 31 at 1.  The purpose of the February 8 preliminary injunction 
hearing was, as the Second Circuit directed, to determine “whether the 25% and 
33% capacity limits can satisfy strict scrutiny.”  Dkt. 26 at 4. 

On February 4, 2021, Defendant wrote that “In light of the rulings in this case 
by the U.S. Supreme Court and the Second Circuit, specifically, the finding that 
‘both the fixed capacity and the percentage capacity limits on houses of 
worship’ in the red and orange zones ‘are subject to strict scrutiny,’ Defendant 
consents to the issuance of a preliminary injunction.”  Dkt. 34 at 1 (quoting 
Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 632 (2d Cir. 2020)).  “Defendant 
respectfully submits that an evidentiary is unnecessary.” Of course, the hearing 
was to determine “whether the 25% and 33% capacity limits can satisfy strict 
scrutiny.” Dkt. 26 at 4 

Hon. Kiyo A. Matsumoto 
February 7, 2021 
Page 2

On February 5, Defendant wrote to advise the Court that he “has made clear 
that he does not dispute the issue of whether the 25% and 33% capacity limits 
as developed for EO 202.68 are narrowly tailored.”  Dkt. 38 at 1. 
Defendant also failed to submit the required pre-hearing memorandum setting forth its 
position regarding the issues to be decided at the February 8 hearing.  In sum, it is entirely accurate 
that Defendant has never contended that the 25% and 33% capacity limits imposed on houses of 
worship by Executive Order 202.68 are narrowly tailored and satisfy strict scrutiny.     
In its February 2 minute order denying Defendant’s motion to cancel the preliminary 
injunction hearing, the Court requested that the parties provide “the specific reasons and findings 
justifying the injunction.”  The reason this Court should enjoin enforcement of the Order’s 25% 
and 33% capacity limits is because Defendant does not contend that these limits are narrowly 
tailored—the very issue remanded by the Second Circuit for decision.     
2. If Defendant’s concessions were not clear enough, this Court can also issue the 
preliminary injunction based on the uncontested evidence submitted by Plaintiffs, 
including the Declaration of Dr. Timothy P. Flanigan, M.D., a leading COVID-19 
research and treatment expert. Dr. Flanigan analyzed the Centers for Disease Control 
and Prevention COVID-19 guidance for houses of worship and concluded: 

 “There is no public health rationale for treating houses of worship differently 
from these favored secular activities [under the Order], many of which involve 
gatherings of individuals in enclosed spaces, often for significant periods of 
time.”  (¶ 51) That is because “a virus does not behave differently simply 
because individuals are in a room for religious worship rather than to conduct 
business or to shop. (¶ 4)  “The safety measures the State imposes and deems 
sufficient for these settings, such as social distancing, face coverings, and hand 
hygiene, can and should be applied to houses of worship as the least restrictive 
means to preventing COVID-19 transmission.”  (¶ 4) 
3. Defendant’s February 5 letter also requests the addition of language to the proposed 
Order.  Plaintiffs oppose those additions, which were not present in the Court’s January 
19, 2021 Order granting a preliminary injunction against Executive Order 202.68’s 10 
and 25 person limits.  In particular, Defendant seeks the ability to unilaterally and at 
will terminate this Court’s preliminary injunction, regardless of any other restriction 
that he might simultaneously impose. That   is contrary to the purpose of a preliminary 
injunction, which protects Plaintiffs’ rights to be free of unconstitutional restrictions 
pending final judgment, and flies in the face of the Supreme Court’s admonition in this 
very case that “there is no reason why [Plaintiffs] should bear the risk of suffering 
further irreparable harm in the event of another reclassification.”  The Roman Catholic 
Diocese of Brooklyn, N.Y. v. Cuomo, 141 S. Ct. 63, 68–69 (2020) (per curiam).      

Hon. Kiyo A. Matsumoto 
February 7, 2021 
Page 3
If Defendant issues a revised executive order, he can argue to this Court at that time 
that the preliminary injunction is no longer necessary.  But until final judgment or 
Defendant makes that showing, the preliminary injunction should remain in place.  
Plaintiffs look forward to the Court’s resolution of these few issues at tomorrow morning’s status 
conference so that the preliminary injunction can be entered.   
Respectfully, 
Avi Schick 
Cc: Counsel for Defendant (via ECF)

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