Liberian Community Association v. Lamont ( 2020 )

17-1558
Liberian Community Association v. Lamont
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2017
(Argued: February 8, 2018 Decided: August 14, 2020)
No. 17-1558
––––––––––––––––––––––––––––––––––––
LIBERIAN COMMUNITY ASSOCIATION OF CONNECTICUT, on behalf of themselves
and those similarly situated, LOUISE MENSAH-SIEH, on behalf of herself and her
minor children B.D. and S.N., on behalf of themselves and those similarly
situated, VICTOR SIEH, on behalf of themselves and those similarly situated,
EMMANUEL KAMARA, on behalf of themselves and those similarly situated,
ASSUNTA NIMLEY-PHILLIPS, on behalf of themselves and those similarly situated,
LAURA SKRIP, on behalf of themselves and those similarly situated, RYAN BOYKO,
on behalf of themselves and those similarly situated, ESTHER YALARTAI, on behalf
of themselves and those similarly situated, BISHOP HARMON YALARTAI, on behalf
of themselves and those similarly situated,
Plaintiffs-Appellants,
-v.-
NED LAMONT, Governor, DEIDRE S. GIFFORD, Acting Commissioner of Public
Health, JEWEL MULLEN, Former Commissioner of Public Health,
Defendants-Appellees. 1
1 The Clerk of Court is respectfully directed to amend the caption as set forth
above.
1
––––––––––––––––––––––––––––––––––––
Before: WINTER, LIVINGSTON, and CHIN, Circuit Judges.
Plaintiffs-Appellants Ryan Boyko, Laura Skrip, the Mensah-Sieh family,
Assunta Nimley-Phillips, Bishop Harmon Yalartai, Esther Yalartai, and the
Liberian Community Association of Connecticut (“Appellants”) appeal from a
judgment of the United States District Court for the District of Connecticut
(Covello, J.) denying their motion for class certification and dismissing their suit
for lack of standing and based on qualified immunity. Appellants challenged the
quarantine decisions of certain Connecticut state officials in response to an Ebola
epidemic in West Africa. On appeal, they primarily argue that (1) they suffered
actual or imminent injuries that create standing to seek prospective relief to avert
allegedly unconstitutional future quarantines; (2) clearly established law required
that any quarantine imposed be medically necessary and comport with certain
procedural safeguards; and (3) their class is sufficiently numerous to merit
certification. We conclude that (1) the district court properly deemed their
injuries too speculative to support standing, and (2) the law surrounding
quarantines was not clearly established such that a state official may be held liable
for the actions taken here. We do not reach the class certification issue because it
is mooted by our conclusion as to standing. Accordingly, the judgment of the
district court is AFFIRMED and REMANDED with instructions to amend the
judgment to clarify that the state law claims were dismissed without prejudice.
Judge CHIN concurs in part and dissents in part in a separate opinion.
FOR PLAINTIFFS-APPELLANTS: D’LANEY GIELOW (Michael J. Wishnie, Amy
Kapczynski, Dana Bolger, Kyle Edwards,
Megha Ram, on the briefs), Jerome N. Frank
Legal Services Organization, Yale Law
School, New Haven, CT.
JEREMY ERSHOW (Susan J. Kohlmann, Jeremy
M. Creelan, Irene M. Ten Cate, on the briefs),
Jenner & Block LLP, New York, NY.
2
(Robert M. Palumbos, Duane Morris LLP,
Philadelphia, PA, for George J. Annas,
Jennifer Bard, Leo Beletsky, Micah Berman,
Scott Burris, Erwin Chemerinsky, Linda C.
Fentiman, Lance Gable, Brandon Garrett,
Lawrence O. Gostin, Jonathan Hafetz, Helen
Hershkoff, Peter D. Jacobson, Jonathan
Kahn, Renee M. Landers, Sylvia A. Law,
Jenny S. Martinez, Seema Mohapatra, Burt
Neuborne, Wendy Parmet, Aziz Rana,
Judith Resnik, Kermit Roosevelt, Charity
Scott, and Stephen I. Vladeck, as amici curiae)
(Kim E. Rinehart, Wiggin and Dana, LLP,
New Haven, CT, for Yale New Haven
Health Services Corporation, Hartford
Hospital, The Hospital of Central
Connecticut, Backus Hospitals, MidState
Medical Center, Windham Hospital, Saint
Francis Hospital and Medical Center,
Johnson Memorial Hospital, Saint Mary’s
Hospital, Bristol Hospital, and Western
Connecticut Health Network, Inc., as amici
curiae)
(Dan Barrett, ACLU Foundation of
Connecticut, Hartford, CT, and Esha
Bhandari, American Civil Liberties Union
Foundation, New York, NY, for American
Civil Liberties Union, American Civil
Liberties Union of Connecticut, Doctors
Without Borders/ Medécins Sans Frontières
USA as amici curiae)
(Ann O’Leary and Kathleen Hartnett, Boies
Schiller Flexner LLP, Palo Alto, CA, and
3
David A. Barrett and Yotam Barkai, Boies
Schiller Flexner LLP, New York, NY, for
Mark Barnes, Leana Wen, and Jeffrey
Duchin as amici curiae)
FOR DEFENDANTS-APPELLEES: ROBERT J. DEICHERT, Assistant Attorney
General, for George Jepsen, Attorney
General, Hartford, CT.
DEBRA ANN LIVINGSTON, Circuit Judge:
This case arises out of the Ebola epidemic that ravaged West Africa between
2014 and 2016. In response to the epidemic, then-Governor Dannel Malloy
declared a public health emergency in the State of Connecticut. The declaration
authorized Dr. Jewel Mullen, then-Commissioner of Public Health, to isolate or
quarantine individuals whom she believed had been exposed to or could transmit
the Ebola virus. She ordered twenty-one-day quarantines for two Ph.D.
candidates—Ryan Boyko and Laura Skrip—and six members of the Mensah-Sieh
family who had recently emigrated from Liberia. None of the quarantined
individuals were infected with Ebola.
Boyko, Skrip, the Mensah-Siehs, Assunta Nimley-Phillips, Bishop Harmon
Yalartai, Esther Yalartai, and the Liberian Community Association of Connecticut
(collectively, “Appellants”) filed a putative class-action suit in the United States
District Court for the District of Connecticut (Covello, J.) challenging the state
4
officials’ actions. 2 They primarily alleged violations of their substantive and
procedural due process rights and the Fourth Amendment. The defendants—the
Governor and Commissioners of Public Health—moved to dismiss pursuant to
Federal Rule of Civil Procedure 12(b). As to these constitutional claims, the
district court dismissed the claims for injunctive relief under Rule 12(b)(1), for lack
of standing, and dismissed the claims for damages under Rule 12(b)(6), on the
basis of Dr. Mullen’s assertion of qualified immunity. 3 The court also denied the
motion for class certification. We agree with the conclusions reached by the
district court as to standing and qualified immunity and need not reach the issue
of class certification. Accordingly, we AFFIRM the judgment but REMAND with
instructions to the district court that the judgment be amended to reflect that the
state law claims were dismissed without prejudice.
2 Dr. Mary Jean O was also a plaintiff but moved before this Court on May 21,
2020, for an order dismissing this appeal as to her. We granted the motion on June 23,
2020.
3 As set forth herein, the plaintiffs also raised certain federal statutory claims that
were similarly dismissed and that are not pursued on appeal. The district court
declined to exercise supplemental jurisdiction as to additional claims raised under
Connecticut state law, thus dismissing them without prejudice. See infra Background,
Section II.
5
BACKGROUND
I. Factual Background 4
A. The 2014 Ebola Outbreak
Ebola “is spread through direct physical contact with the bodily fluids of a
symptomatic person, the body of a person who has died from Ebola, or objects
contaminated with the virus, such as used needles.” J.A. 26. 5 Once an
individual has contracted the virus, “[t]he incubation period (the time from
infection to onset of symptoms) is usually four to nine days but can range from
two to twenty-one days.” Id. “Symptoms include fever, headache, joint and
muscle aches, diarrhea, and vomiting.” Id.
The first victim of the 2014 Ebola outbreak may well have been a young boy
from a village “deep within the Guinean forest region” who died in December
2013. 6 The disease thereafter spread, “kill[ing] the boy’s mother, then his 3-year-
old sister, then his grandmother.” 7 In the months that followed, dozens more
The factual background presented here is primarily derived from allegations in
4
the complaint, which we accept as true in considering a motion to dismiss.
5 “J.A.” refers to the Joint Appendix.
6 Michelle Roberts, First Ebola boy likely infected by playing in bat tree, BBC (Dec. 30,
2014), https://www.bbc.com/news/health-30632453.
Denise Grady and Sheri Fink, Tracing Ebola’s Breakout to an African 2-Year-Old,
7
N.Y. Times (Aug. 9, 2014), https://www.nytimes.com/2014/08/10/world/africa/tracing-
6
died as the disease moved between relatives, friends, and health care workers.
Soon, the virus had “spread rapidly throughout Guinea, Liberia, and Sierra
Leone.” J.A. 26. On March 23, 2014, “the World Health Organization (‘WHO’)
announced an outbreak of Ebola in West Africa.” Id. Over the next twenty-two
months, more than 28,000 individuals were diagnosed with Ebola. Over 11,000
died. This was the largest Ebola outbreak in history, yet those afflicted resided
almost exclusively in Guinea, Liberia, and Sierra Leone. Outside those three
countries, fewer than forty cases of Ebola emerged.
During the outbreak, to prevent the spread of the disease in the United
States, both the Centers for Disease Control and Prevention (“CDC”) and the
Department of Homeland Security (“DHS”) released policy guidance on how to
manage the flow of people from West Africa. The CDC initially “recommended
only self-monitoring or active monitoring for twenty-one days, and recommended
no movement restrictions or quarantine” “[f]or asymptomatic individuals
returning from West Africa with ‘no risk’ or ‘low risk’ of exposure.” 8 J.A. 27.
ebolas-breakout-to-an-african-2-year-old.html.
8 “According to the CDC, ‘isolation’ is the separation of individuals who are sick
with a contagious disease from those who are not sick. ‘Quarantine’ is the separation of
asymptomatic individuals exposed to a contagious disease to see if they become sick.”
J.A. 28. “‘Self-monitoring’ refers to a practice whereby people check their own
7
On October 8, 2014, the CDC and the DHS jointly “announced a safety plan”
pursuant to which individuals “entering the United States from Guinea, Liberia,
and Sierra Leone” were directed “to one of five ports of entry.” J.A. 28. On
arrival, trained staff screened travelers for signs of illness and inquired about their
health and possible prior exposures. If a passenger “required further evaluation
or monitoring, federal officers referred those travelers to the appropriate state or
local public health authority. Travelers with no symptoms, fever, or a known
history of exposure received health information for self-monitoring and were
approved to exit the airport.” J.A. 28. After the safety plan was announced, the
CDC also revised its prior guidance. The new guidance, issued on October 27,
“recommended ‘no restrictions on travel, work, public conveyances, or congregate
gatherings’ for asymptomatic individuals . . . who had been in an affected country
but had no known exposure.” J.A. 30.
Over a year and a half after the virus was first identified, the WHO declared
Sierra Leone Ebola-free on November 7, 2015. Guinea and Liberia followed on
December 29, 2015, and January 14, 2016, respectively. Despite these
temperature and monitor themselves for symptoms. ‘Active monitoring’ refers to the
‘monitoring of travelers by health departments.’” Appellants Br. 7 n.2.
8
declarations, experts cautioned that these three nations “remain[ed] at high risk of
future Ebola outbreaks.” Id. Nevertheless, on March 29, 2016, the WHO
deemed the “Public Health Emergency of International Concern” over. J.A. 111.
Since the end of the Ebola crisis in West Africa, there have been at least ten flare-
ups or small outbreaks of Ebola in West Africa, and multiple outbreaks in the
Democratic Republic of the Congo.
B. Connecticut’s Response
Under Connecticut state law, the state government acquires the authority to
quarantine if the Governor declares a public health emergency. Conn. Gen. Stat.
§ 19a-131a. Once the Governor makes such a declaration, he may authorize the
State Public Health Commissioner (the “Commissioner”) to quarantine or isolate
people “whom the commissioner has reasonable grounds to believe” are or could
be infected with a communicable disease. Id. § 19a-131b(a). The Commissioner
is to issue quarantine and isolation orders only when they are “necessary and the
least restrictive alternative to protect or preserve the public health.” Id.
Numerous statutory factors guide the issuance of a quarantine or isolation order.
Id. § 19a-131b(b). The Commissioner must also comply with various procedural
requirements, including informing the quarantined or isolated individuals in
9
writing, id. § 19a-131b(c), limiting the order to a renewable twenty-day period, id.,
and informing individuals that they have a right to a hearing to challenge their
quarantine order and a right to an attorney at this hearing at the State’s expense,
id. § 19a-131b(d).
Turning to the actions of the Governor of Connecticut (“Governor”) 9 and
then-Commissioner of the Connecticut Department of Public Health Dr. Jewel
Mullen (collectively with Acting Commissioner Deidre S. Gifford, “Appellees”),
on October 7, 2014, the Governor issued an order declaring a public health
emergency for the State of Connecticut. The order authorized Dr. Mullen “to
direct the isolation or quarantine of individuals whom she ‘reasonably believe[d]
to have been exposed to, infected with, or otherwise at risk of passing the Ebola
virus.’” J.A. 28.
The following week, on October 16, 2014, “Malloy and Mullen established
statewide Ebola response policies . . . that the Governor’s office described as ‘more
stringent than the guidelines thus far issued by the Federal Center[s] for Disease
9 The Governor at the time of the events underlying this suit and when the
complaint was filed was Dannel Malloy. He has since been succeeded by Ned Lamont.
Accordingly, Governor Lamont has been automatically substituted as a defendant-
appellee. See Fed. R. App. P. 43(c)(2).
10
Control and Prevention . . . .’ All asymptomatic individuals who had traveled to
affected areas or been in contact with an infected individual were to be
quarantined at home for twenty-one days.” J.A. 28–29. Appellants allege that
the Governor and Dr. Mullen knew that their policy went further than was
necessary, citing a statement from a Connecticut Department of Public Health
spokesman describing people quarantined as “not sick and not a risk to public
health.” J.A. 29, 71. The policy was ultimately modified and made less
restrictive on October 27, the same day the CDC issued the revised guidance
discussed above. The new plan “imposed ‘mandatory active monitoring’ for
asymptomatic travelers arriving in Connecticut from Guinea, Liberia, and Sierra
Leone, but still contemplated ‘quarantine for individuals based on risk factors’”
following an “individualized risk assessment.” J.A. 29–30.
The revised policy remained in place until April 1, 2016, when, three days
after the WHO declared an end to the public health emergency in West Africa,
Governor Malloy terminated the emergency in Connecticut.
11
C. Appellants’ Experiences
1. The Ph.D. Candidates
Ryan Boyko and Laura Skrip were Ph.D. candidates at the Yale School of
Public Health who traveled to Liberia to help the Liberian Ministry of Health and
Social Welfare analyze data collected during the Ebola outbreak. After arriving
in Liberia on September 18, 2014, they did not have contact with any Ebola-
symptomatic people and took a variety of precautions to avoid exposure. They
planned to return to the United States on October 3 but delayed their trip when
Boyko developed a cough. Skrip displayed no symptoms, and Boyko felt better
after two days. As a condition of returning on a replacement flight, Yale’s travel
medical insurance company required that Boyko be tested for Ebola. On October
6, he tested negative and received a letter confirming this. When they learned
that a freelance cameraman who spent time at their hotel had developed Ebola
symptoms, Boyko and Skrip consulted with CDC representatives, who told them
that this presented “no risk” because the cameraman did not display symptoms
until after they had last seen him. J.A. 33.
Boyko and Skrip left Liberia on October 11 and, upon arriving back in the
United States, underwent Ebola screening procedures. DHS officials allowed
12
them to enter the country. Federal officials informed Connecticut officials about
Boyko and Skrip’s arrival. The pair returned to New Haven, where they took
their temperatures twice a day and emailed the results to the Yale Health Center.
On October 15, Boyko developed a fever and was transported to the Yale-
New Haven Hospital. Hospital staff took blood samples and sent them to the
CDC and the Massachusetts Public Health laboratory for testing. Boyko’s fever
subsided while he was under the hospital’s care and both tests came back negative
for Ebola. Contemporaneously, the City of New Haven health department told
Skrip that she would be subject to “mandatory active monitoring,” meaning that
the City would call her twice a day to ask her to take her temperature and report
the results. J.A. 34.
On October 17, the same day Boyko received his second negative result, Dr.
Mullen ordered him quarantined. The order required him to stay in his home
through October 30, twenty-one days after October 10, i.e., the longest possible
incubation period for Ebola. The order informed Boyko that failure to comply
could lead to penalties but acknowledged that Boyko had a right to a counseled
hearing. Dr. Mullen signed an equivalent order for Skrip. Boyko received a
copy of his quarantine order in the hospital, but Skrip was informed of hers over
13
the phone. After she informed a Yale official that she had not received an official
quarantine order, Skrip received a written order laying out the terms of the
quarantine and her rights.
Police officers were deployed outside of Boyko and Skrip’s apartments to
ensure they complied with the quarantine orders. Their quarantines ended at
12:01 a.m. on October 30, 2014, a day earlier than initially anticipated because of
state law requirements. See Conn. Gen. Stat. § 19a-131b(c) (only allowing for
quarantine orders of twenty days unless the Commissioner of Public Health
renews the order). Despite the revision to Connecticut’s quarantine policy on
October 27, neither Boyko’s nor Skrip’s quarantine order was reevaluated before
the quarantines ended in due course.
2. The Mensah-Sieh Family and Assunta Nimley-Phillips
Assunta Nimley-Phillips, who is Louise Mensah-Sieh’s sister, immigrated
to the United States from Liberia in the 1980s. Mensah-Sieh, her husband
Nathaniel Sieh, 10 and their four children—Victor Sieh, Emmanuel Kamara, B.D.,
and S.N.—lived in Liberia. After receiving visas to live in the United States
through the Diversity Visa Lottery, the entire family underwent medical tests on
10 Nathaniel Sieh did not appeal the district court’s order of dismissal.
14
the basis of which federal officials approved them for entry into the United States.
They arrived on October 18, 2014, at which point the family was screened by DHS
personnel and cleared to enter the country. The Mensah-Siehs were neither told
to self-monitor nor provided any other quarantine-related information. Nimley-
Phillips met her family at the airport and drove them to her home in West Haven,
Connecticut. CDC and DHS officials notified Connecticut state and local health
officials of the family’s arrival.
On October 20, 2014, Maureen Lillis, West Haven Director of Public Health,
called Nimley-Phillips and told her that the Mensah-Siehs were subject to a
quarantine for twenty-one days. Lillis told Nimley-Phillips to check the family’s
temperature three times a day and monitor them for symptoms. As with Boyko
and Skrip, police officers were stationed outside Nimley-Phillips’s home and
barred anyone from entering or exiting the house apart from Nimley-Phillips and
her adult daughter. Neither Nimley-Phillips nor the Mensah-Sieh family
received a written quarantine order, official communications about the
quarantine, or information regarding their right to challenge the quarantine. No
adjustments were made to the Mensah-Siehs’ quarantine orders following the
October 27 revision to Connecticut’s quarantine policy.
15
3. The Yalartais and the Liberian Community Association of
Connecticut
The other Appellants—Bishop Harmon Yalartai, Esther Yalartai, and the
Liberian Community Association of Connecticut (“LCAC”)—all allege that they
intend to travel to Liberia and fear being subject to quarantine orders upon their
return. Indeed, three of the Appellants—the Yalartais and Skrip—were in Liberia
when the complaint was filed. The Yalartais, who were born in Liberia but reside
in Connecticut, are leaders of a religious organization with churches in both
Liberia and Connecticut. They regularly travel to and from Liberia to oversee the
work of their church. LCAC is a non-profit organization that works to enhance
the lot of the Liberian community in Connecticut and contribute to development
efforts in Liberia. Dozens of its 230 members regularly travel to Liberia.
II. Procedural History
Appellants filed their putative class action suit on February 8, 2016. All
Appellants sought declaratory and injunctive relief; Boyko and the Mensah-Siehs
also sought damages from Dr. Mullen. Appellants allege that Appellees, inter
alia, (1) violated the substantive due process rights of Boyko, Skrip and the
Mensah-Siehs by “quarantining them without medical or epidemiological
justification and in a manner that substantially exceeded the least restrictive means
16
necessary”; (2) violated their procedural due process rights by failing to make
individualized assessments or providing adequate notice and an opportunity to
challenge their quarantines; and (3) violated the Fourth Amendment by
unreasonably seizing them through the quarantines. 11 J.A. 58–62. They also
asserted various state law tort claims, and moved to certify a “class consisting of
all persons who will or intend to travel from Ebola-affected countries to
Connecticut and are at risk of Defendants subjecting them to an unlawful and
scientifically unjustified quarantine.” J.A. 54. Appellees filed a motion to
dismiss for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6), and they
opposed the motion for class certification.
The district court denied the motion for class certification, “concluding that
the proposed class is too speculative to satisfy the numerosity requirement for
class certification.” Liberian Cmty. Ass’n v. Malloy, No. 3:16-cv-201, 2016 WL
10314574, at *7 (D. Conn. Aug. 1, 2016). In a separate decision, the district court
granted Appellees’ motion to dismiss. Liberian Cmty. Ass’n v. Malloy, No. 3:16-cv-
11Before the district court, Appellants also asserted claims under the Americans
with Disabilities Act, 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794, which
they do not press on appeal and we need not address.
17
201, 2017 WL 4897048, at *1 (D. Conn. Mar. 30, 2017). As to the claims for
declaratory and injunctive relief, the district court found that Appellants lacked
standing because they failed to establish “a ‘real and immediate’ threat of injury.”
Id. at *7–8 (quoting Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004)). The district
court further concluded that Dr. Mullen was entitled to qualified immunity on the
damages claim. Id. at *9–14. Finally, as to the state law claims, the district court
“decline[d] to exercise supplemental jurisdiction over the plaintiffs’ state law
causes of action,” id. at *15, necessarily dismissing them without prejudice. See
Carter v. HealthPort Techs., LLC, 82 F.3d 47, 54–55 (2d Cir. 2016); see also Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[W]hen the federal-law claims have
dropped out of the lawsuit in its early stages and only state-law claims remain, the
federal court should decline the exercise of jurisdiction by dismissing the case
without prejudice.” (footnote omitted)). Accordingly, the district court entered
judgment dismissing the action, although the judgment did not specify that the
state claims were dismissed without prejudice. 12 This appeal followed.
12 In light of our decision to affirm the dismissal of the federal claims, we do not
address the merits of the state law claims. However, we remand as to these claims, with
instructions to the district court that it amend the judgment to make clear that these
claims are dismissed without prejudice.
18
DISCUSSION
Appellants advance two principal arguments on appeal: first, that they have
standing to seek prospective relief, and, second, that Dr. Mullen is not entitled to
qualified immunity on Boyko and the Mensah-Siehs’ damages claim. We
disagree as to both arguments and discern no error in the district court’s standing
or qualified immunity analysis.
I
“Standing to sue is a doctrine” that “limits the category of litigants
empowered to maintain a lawsuit in federal court to seek redress for a legal
wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “[T]he ‘irreducible
constitutional minimum’ of standing consists of three elements.” Id. (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Id.; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180–81 (2000). As relevant here, the “injury in fact” must have been
“concrete and particularized” as well as “actual or imminent, not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (quotation marks and citations omitted).
19
“Allegations of possible future injury do not satisfy the requirements of Art[icle]
III.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). Rather, there must be “a
‘substantial risk’ that harm will occur.” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 n.5 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153–
54 (2010)); see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
“[T]he proper procedural route [for bringing a standing challenge] is a
motion under Rule 12(b)(1).” All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co.,
436 F.3d 82, 88 n.6 (2d Cir. 2006). And on appeal from a dismissal under Rule
12(b)(1), as here, “we review the court's factual findings for clear error and its legal
conclusions de novo.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L.,
790 F.3d 411, 417 (2d Cir. 2015). “The plaintiff[s] bear[] the burden of ‘alleg[ing]
facts that affirmatively and plausibly suggest that [they] ha[ve] standing to sue.’”
Id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.
2011)). All allegations made in the complaint are accepted as true and construed
in favor of the plaintiffs. Id. (citing W.R. Huff Asset Mgmt. Co., LLC v. Deloitte &
Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)).
Appellants failed to plead a sufficient likelihood that, under the revised
policy, any of them faces a substantial risk of suffering a future injury. See City of
20
Los Angeles v. Lyons, 461 U.S. 95, 106–07 (1983). Indeed, the revised policy—that
is, the policy that was in effect when the complaint was filed—defaults to active
monitoring for any arriving asymptomatic travelers and permits quarantine only
after an individualized assessment. In Lyons, the Supreme Court directed the
dismissal of Lyons’ complaint challenging the use of chokeholds by Los Angeles
police because the complaint “did not indicate why Lyons might be realistically
threatened by police officers who acted within the strictures of the City’s policy.”
Id. at 106. Here, as in Lyons, Appellants have failed plausibly to allege any basis
for concluding that they will be threatened with quarantine by Connecticut state
officials who act within the revised policy.
Appellants argue that Appellees’ failure to reassess the quarantines
imposed on Boyko, Skrip, and the Mensah-Siehs in light of the revised policy
demonstrates its “irrational execution,” supposedly enhancing their risk of future
injury. Appellants Br. 54. But the fact that Appellees declined to reconsider a
previously imposed quarantine offers scant if any basis for assessing the
substantiality of the prospective risk. Particularly in light of the individualized
assessment mandated by the revised policy, Appellants “can only speculate as to
whether [Appellees] will authorize such [quarantines]” in the future. Clapper,
21
568 U.S. at 413. And under the circumstances alleged in this complaint, “[w]e
decline to abandon our usual reluctance to endorse standing theories that rest on
speculation about the decisions of independent actors.” Id. at 414.
In a final effort to overcome the deficiencies in the complaint, Appellants
assert that they also suffer a “present harm” because the quarantine policy “that
was firmly in place at the time of filing and had already been applied against
several of them” “restricted [their] freedom by greatly increasing the potential
monetary, time, and personal costs of traveling to Liberia.” Appellants Br. 56–57
(emphasis omitted). But this argument of present harm is contrary to the
complaint’s own allegations. As already noted (and as the complaint alleges), the
policy that was applied to quarantine Boyko, Skrip and the Mensah-Siehs was
revised shortly after their quarantines were imposed. Appellants do not allege
that they—or anyone else—have been subjected to a quarantine since the revised
policy issued. Such circumstances thus distinguish Appellants from the
plaintiffs in Monsanto, 561 U.S. at 153–55, and Friends of the Earth, 528 U.S. at 184–
85, upon which they rely. The plaintiffs in those cases averred that they would
have to take immediate and concrete steps to avoid harm. See Monsanto, 561 U.S.
at 154 (“[R]espondents would have to conduct testing to find out whether and to
22
what extent their crops have been contaminated.”); Friends of the Earth, 528 U.S. at
184 (“[A] company's continuous and pervasive illegal discharges of pollutants into
a river would cause nearby residents to curtail their recreational use of that
waterway and would subject them to other economic and aesthetic harms.”).
Conversely here, Appellants merely allege that they must make travel plans
“under the reasonable fear of being subject to another unjustified and unlawful
quarantine.” 13 J.A. 49. In sum, the notion that Appellants must undertake
reasonable efforts in the present to avert injury in the future is also speculative,
and Appellants lack standing to pursue any of their prospective claims. 14
13 Indeed, Skrip and the Yalartais—the only Appellants who specifically allege
that they intend to visit Liberia in the future—allege no changes to their travel plans at
all, let alone that they either have incurred or will incur concrete costs because of their
fear of the challenged policy.
14 Because we conclude that none of the named plaintiffs has standing to pursue
their claims for prospective relief, the class proposed by Appellants necessarily fails as
well. See Amador v. Andrews, 655 F.3d 89, 99 (2d Cir. 2011) (“[A] class action cannot be
sustained without a named plaintiff who has standing.”); see also NECA-IBEW Health &
Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 159 (2d Cir. 2012) (“[W]e have said that,
to establish Article III standing in a class action[,] for every named defendant there must
be at least one named plaintiff who can assert a claim directly against that defendant, and
at that point standing is satisfied and only then will the inquiry shift to a class action
analysis.” (brackets, ellipsis, and quotation marks omitted)). Accordingly, we do not
reach the class certification question.
23
II
We now turn to the claim for damages against Dr. Mullen. “To survive a
12(b)(6) motion to dismiss, a ‘complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’” Drimal v.
Tai, 786 F.3d 219, 223 (2d Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. Here, Appellees asserted a
qualified immunity defense in their Rule 12(b)(6) motion to dismiss. We review
a district court's determination as to qualified immunity on a motion to dismiss de
novo, “‘accepting as true the material facts alleged in the complaint and drawing
all reasonable inferences in plaintiffs’ favor.’” Garcia v. Does, 779 F.3d 84, 91 (2d
Cir. 2015) (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d
Cir. 2001)). The Supreme Court has “repeatedly ‘stressed the importance of
resolving immunity questions at the earliest possible stage [of the] litigation,’”
Wood v. Moss, 572 U.S. 744, 755 n.4 (2014) (quoting Hunter v. Bryant, 502 U.S. 224,
227 (1991) (per curiam)), and it is “well established that an affirmative defense of
official immunity . . . may be resolved by Rule 12(b)(6) if clearly established by the
24
allegations within the complaint,“ Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
75 (2d Cir. 1998); see also McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004) (noting
that qualified immunity defense may be “successfully asserted in a Rule 12(b)(6)
motion”).
At the start, qualified immunity doctrine “is intended to provide
government officials with the ability to ‘reasonably . . . anticipate when their
conduct may give rise to liability for damages.’” Anderson v. Creighton, 483 U.S.
635, 646 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). When the
“general rule of qualified immunity” is applicable, “officials can know that they
will not be held personally liable as long as their actions are reasonable in light of
current American law.” Id. Public officials are entitled to qualified immunity
“unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S.
658, 664 (2012)). And a court need not determine whether a defendant violated a
plaintiff’s rights if it decides that the right was not clearly established. See Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
25
To be sure, “a case directly on point” is not required “for a right to be clearly
established.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam). At the same
time, “existing precedent must have placed the statutory or constitutional question
beyond debate.” Id. (emphasis added). “‘Clearly established’ means that, at the
time of the officer’s conduct, the law was sufficiently clear that every ‘reasonable
official would understand that what he is doing’ is unlawful.” Wesby, 138 S. Ct.
at 589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In practice, this means
that “‘controlling authority’ or ‘a robust consensus of cases of persuasive
authority’” dictate the action at issue. Id. at 589–90 (quoting al-Kidd, 563 U.S. at
741–42). A plaintiff must show with a high “degree of specificity,” Mullenix v.
Luna, 136 S. Ct. 305, 309 (2015) (per curiam), that the rule he seeks to apply
prohibited the officer’s conduct. See Wesby, 138 S. Ct. at 590; see also City and
County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015) (noting that the
Supreme Court has “repeatedly told courts . . . not to define clearly established
law at a high level of generality”). In other words, an official is immune from
liability unless, under the particular circumstances the official faced, any
“reasonable offic[ial]” would have “known for certain that the conduct was
26
unlawful” under then-existing precedent. Ziglar v. Abbasi, 137 S. Ct. 1843, 1867
(2017).
Boyko and the Mensah-Siehs—the only Appellants seeking damages—
advance three legal bases for their claim: substantive due process, procedural due
process, and the Fourth Amendment’s prohibition on unreasonable seizures. We
discuss only whether, at the time of Dr. Mullen’s alleged conduct, it was clearly
established that her conduct ran afoul of these constitutional protections. 15
A. Substantive Due Process
Appellants first argue that “[b]ecause quarantines—a form of civil
detention—implicate fundamental liberty interests, existing law clearly
establishes that officials may impose them only when necessary to achieve a
15 Appellants urge us to “address the merits of the constitutional issue even if the
Court were to conclude that Dr. Mullen’s conduct is shielded by qualified immunity.”
Appellants Br. 48. Yet the Supreme Court has cautioned us to “think hard, and then
think hard again, before turning small cases into large ones.” Camreta v. Greene, 563 U.S.
692, 707 (2011); see also al-Kidd, 563 U.S. at 735 (“Courts should think carefully before
expending ‘scarce judicial resources’ to resolve difficult and novel questions of
constitutional or statutory interpretation that will ‘have no effect on the outcome of the
case.’” (quoting Pearson, 555 U.S. at 236–37)). While there are circumstances in which
discretion is properly exercised to address step one of the qualified immunity analysis
even when qualified immunity is appropriate at step two, this is not such a situation.
See, e.g., Jones v. Chandrasuwan, 820 F.3d 685, 691–92 (4th Cir. 2016); Morgan v. Swanson,
659 F.3d 359, 385 (5th Cir. 2011); cf. Pearson, 555 U.S. at 237–39 (cataloguing situations
where reaching the constitutional question is inappropriate).
27
compelling state interest and in the absence of less restrictive means.”
Appellants Br. 30 (citing Lawrence v. Texas, 539 U.S. 558, 593 (2003); Shelton v.
Tucker, 364 U.S. 479, 488 (1960)). According to Appellants, “[c]ases in multiple
civil commitment settings confirm that substantive due process analysis applies
whenever, as with quarantine, a state civilly confines an individual ostensibly to
protect the public.” Appellants Br. 31 (citing cases). And Appellants cite
Second Circuit precedent to the effect that “involuntary confinement of an
individual for any reason”—which, according to Appellants, includes the
quarantining of individuals amidst an infectious disease outbreak—is subject to a
least-restrictive-means test. Appellants Br. 33 (quoting Project Release v. Prevost,
722 F.2d 960, 971 (2d Cir. 1983)) (emphasis in Appellants Br.).
But Appellants take this Court’s language out of context. The full
quotation from Project Release makes clear that its “for any reason” language refers
specifically to various public policy justifications a state might have to commit the
mentally ill, such as its “parens patriae” or “police power” authority. See Project
Release, 722 F.2d at 971. Read in context, it is clear that the Court, in articulating
a least-restrictive-means test, was referring only to the civil detention of people
who are mentally ill. Indeed, every case relied upon by Project Release in
28
discussing due process solely addresses confinement of the mentally ill—not, as
Appellants contend, multiple settings. See, e.g., Vitek v. Jones, 445 U.S. 480 (1980);
Addington v. Texas, 441 U.S. 418 (1979); O’Connor v. Donaldson, 422 U.S. 563 (1975);
Humphrey v. Cady, 405 U.S. 504 (1972); see also Foucha v. Louisiana, 504 U.S. 71, 80
(1992); Jones v. United States, 463 U.S. 354 (1983); Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000). A “reasonable official” would thus not necessarily interpret
Project Release or any of these other cases to define the outer limits of the state’s
quarantine power in the context of a major Ebola outbreak. 16 Wesby, 138 S. Ct. at
590.
The dissent similarly finds support for a least-restrictive-means test in the
context of an Ebola-related quarantine in the Supreme Court’s affirmation in Jones
v. United States that “‘commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.’” Dissenting Op. 3–4
(quoting Jones, 463 U.S. at 361) (emphasis in dissent). Again, however, the due
16 Jolly v. Coughlin, 76 F.3d 468, 479–80 (2d Cir. 1996), upon which Judge Chin’s
partial dissent (“dissent”) relies, is similarly unhelpful in establishing the substantive due
process standard urged by Appellants. Indeed, Jolly does not even address a due
process claim. The “medical keeplock” at issue there was challenged under the
Religious Freedom Restoration Act, which by its terms applies a least-restrictive-means
test only to claims regarding the exercise of religion. See id. at 474.
29
process standards articulated in Jones, as in Project Release, concern civil
commitment of the mentally ill. Taking a generalized statement like that found
in Project Release or Jones as evidence of a “clearly established rule” in the context
of quarantines conflicts with the Supreme Court’s directive that we should not
“define clearly established law at a high level of generality.” Mullenix, 136 S. Ct.
at 308; see id. (“This inquiry ‘must be undertaken in light of the specific context of
the case, not as a broad general proposition.’” (quoting Brosseau v. Haugen, 543 U.S.
194, 198 (2004) (per curiam)). Quarantines against infectious disease, involving
different public safety concerns and implicating different liberty interests, are
simply not sufficiently analogous to civil commitment of the mentally ill to clearly
establish applicable due process constraints. As the Supreme Court explained in
City of Sacramento v. Lewis, “[r]ules of due process are not . . . subject to mechanical
application in unfamiliar territory.” 523 U.S. 833, 850 (1998); cf. Reno v. Flores, 507
U.S. 292, 302 (1993) (“‘Substantive due process’ analysis must begin with a careful
description of the asserted right, for ‘the doctrine of judicial self-restraint requires
us to exercise the utmost care whenever we are asked to break new ground in this
field.’” (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)) (brackets
omitted)). Accordingly, not “every reasonable official would interpret [civil
30
commitment cases] to establish the particular rule that the plaintiff[s] seek[] to
apply.” Wesby, 138 S. Ct. at 590.
Indeed, Appellants point to only one decision that has applied the civil
commitment line of cases in the infectious disease context: Best v. St. Vincents Hosp.,
No. 03 CV.0365, 2003 WL 21518829 (S.D.N.Y. July 2, 2003), adopted by 2003 WL
21767656, aff’d in relevant part sub nom. Best v. Bellevue Hosp., 115 F. App’x 459 (2d
Cir. 2004). But a single magistrate’s report and recommendation, even when
adopted by a district court, is insufficient, standing alone, to clearly establish a
constitutional rule. 17 Cf. Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 61 (2d Cir.
2014) (“[W]e have specifically cautioned against the reliance on non-precedential
summary orders [and district court opinions] in ‘clearly established’ analyses”
because “‘[n]on-precedential’ decisions, by their very definition, do not make
law.” (citing Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir. 2011))).
Nor does it help to situate Best among other decisions addressing
quarantines and infectious diseases. By the late nineteenth century, “the right of
the legislature to enact such measures as will protect all persons from the
We did not have occasion to pass on the merits of the magistrate judge’s analysis
17
in summarily affirming in part the judgment on appeal.
31
impending calamity of a pestilence” was well established. In re Smith, 146 N.Y.
68, 77 (1895). As the doctrine developed into the early twentieth century, courts
gradually recognized limits on this power. Even so, neither Appellants nor the
dissent point to any authority in this archipelago of cases that clearly establishes
the substantive due process rule they now urge. 18
Quite to the contrary. In assessing the constitutionality of a Massachusetts
law requiring individuals to either receive the smallpox vaccine or pay a fine, the
Supreme Court noted in 1905 that “the police power of a state must be held to
embrace, at least, such reasonable regulations established directly by legislative
18 For instance, in Chy Lung v. Freeman, the Supreme Court considered a California
statute which allowed the State to exclude arriving passengers on a number of grounds,
including if they were “a public charge, or likely soon to become so” because of “sickness
or disease.” 92 U.S. 275, 277 (1875). But far from articulating substantive due process
limits on the quarantine authority, the Court ultimately struck down the statute because
it conflicted with the federal government’s authority to regulate immigration. Id. at 281.
In Smith, the New York Court of Appeals ruled unlawful the quarantine of individuals
who had been detained for refusing to receive a smallpox vaccine. 146 N.Y. at 78. But
it in no way articulated a least-restrictive-means test of the sort urged by Appellants,
instead recognizing “some latitude of a reasonable discretion . . . to the local authorities
upon the facts of a case.” Id. A pair of cases from California struck down
discriminatorily enforced quarantines. See Jew Ho v. Williamson, 103 F. 10, 26 (N.D. Cal.
1900) (“The evidence here is clear that this [quarantine] is made to operate against the
Chinese population only . . . .”); Wong Wai v. Williamson, 103 F. 1, 7 (N.D. Cal. 1900)
(granting injunction prohibiting government officials from enforcing a quarantine
targeting Chinese individuals). But neither of these cases is analogous to the instant suit
as both involved neighborhood-wide discriminatory quarantines. No similar
allegations are made here.
32
enactment as will protect the public health and the public safety.” Jacobson v.
Massachusetts, 197 U.S. 11, 25 (1905); Compagnie Francaise de Navigation a Vapeur v.
State Bd. of Health, 186 U.S. 380, 387 (1902) (“[T]he power of the states to enact and
enforce quarantine laws for the safety and the protection of the health of their
inhabitants . . . is beyond question.”). The Court recognized that such measures
could be unlawful if undertaken in “an arbitrary, unreasonable manner, or . . .
go[ing] so far beyond what was reasonably required for the safety of the public . .
. .” Jacobson, 197 U.S. at 28; see also id. at 31 (noting that courts may strike down
public health statutes if they have “no real or substantial relation to those objects,
or [are], beyond all question, a plain, palpable invasion of rights”). But of
particular relevance here is the Supreme Court’s acknowledgement that:
An American citizen arriving at an American port on a vessel in
which, during the voyage, there had been cases of yellow fever or
Asiatic cholera, . . . although apparently free from disease himself,
may yet, in some circumstances, be held in quarantine against his will
on board of such vessel or in a quarantine station, until it be
ascertained by inspection, conducted with due diligence, that the
danger of the spread of the disease among the community at large has
disappeared.
Id. at 29; see also United States v. Harris, 838 F.3d 98, 107 (2d Cir. 2016) (“[E]ven if
the statement is fairly characterized as dictum, we are obligated ‘to accord great
33
deference to Supreme Court dicta, absent a change in the legal landscape.’”
(quoting Newdow v. Peterson, 753 F.3d 105, 108 n.3 (2d Cir. 2014))).
Since Jacobson, the Supreme Court has not addressed the limits imposed by
due process on a State’s power to manage infectious diseases. Moreover, in a
small number of decisions, other courts have adopted approaches more deferential
than the least-restrictive-means test urged by Appellants. See, e.g., United States
ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 790–91 (E.D.N.Y. 1963) (upholding the
decision to isolate a woman who arrived in the United States from a region
infected with smallpox for the entire incubation period of the disease as “reached
in obvious good faith” after “forthright, reasoned and circumstantially reassuring”
consideration); People ex rel. Baker v. Strautz, 386 Ill. 360, 362, 364–65 (1944)
(upholding statute authorizing isolation of criminal defendants who “may be
suffering from any communicable venereal disease” on the grounds that “the
courts will not interfere with the exercise of this power except where the
regulations adopted for the protection of the public health are arbitrary,
oppressive and unreasonable”).
Appellants and the dissent contend that the trend nevertheless goes in the
other direction and that courts have grown less deferential in modern times. See,
34
e.g., City of Newark v. J.S., 652 A.2d 265 (N.J. Super. Ct., Essex Cty. 1993) (discussing
the least-restrictive-means test). But the cases do not bear out this purported
trend. In Hickox v. Christie, for example, which arose out of the same Ebola crisis
that gave rise to this appeal, the court concluded that “[t]he case law regarding the
least restrictive means requirement falls far short of a clear consensus capable of
defeating qualified immunity.” 205 F. Supp. 3d 579, 599 (D.N.J. 2016). That
court’s review of the quarantine case law led it to suggest that the usual standard
applied is one of “arbitrariness or unreasonableness.” Id. at 593; see also Daniels
v. Maricopa Cty. Special Health Care Dist., No. CV-07-1080, 2009 WL 10708630, at *7
(D. Ariz. Oct. 20, 2009) (rejecting due process challenge to isolation of tuberculosis
patient under a “reasonably related” standard).
Nor do the smattering of state trial court decisions relied upon by the dissent
change the analysis. Passing over the fact that such precedent cannot clearly
establish law, see Matusick, 757 F.3d at 61, none of these decisions even purported
to apply federal due process standards. Both In re City of New York v. Antoinette
R., 165 Misc. 2d 1014 (N.Y. Sup. Ct., Queens Cty. 1995), and Mayhew v. Hickox, No.
CV-2014-26 (Me. Dist. Ct., Oct. 31, 2014), assessed quarantine orders against the
backdrop of state or municipal laws that incorporated a least-restrictive-means
35
test. Appellants and the dissent both emphasize that Connecticut’s quarantine
law employs a least-restrictive-means test. See Conn. Gen. Stat. § 19a-131b(a).
But the fact that Connecticut and other states have seen fit to adopt this test by
statute is not relevant to our qualified immunity analysis. “[W]e have repeatedly
held[] that a state statute does not serve as ‘clearly established law’ for purposes
of qualified immunity.” Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir. 2019). Put
another way, assuming arguendo that Appellees’ actions violated Connecticut law,
“the court must [still] determine whether the conduct that violated the state statute
also violates clearly established federal law, and this is a distinct and separate
inquiry.” Id. at 173.
In sum, there was by no means a “robust consensus” on the proper standard
for analyzing quarantine claims at the time of the conduct at issue here. Wesby,
138 S. Ct. 591. To the extent the substantive due process restrictions articulated
by Appellants existed then, they were “at best undeveloped.” Wilson v. Layne,
526 U.S. 603, 617 (1999). That district courts in this Circuit (Best and Shinnick,
specifically) have employed different analyses only further “demonstrates that the
law on the point [was] not well established.” Ziglar, 137 S. Ct. at 1868.
36
In such circumstances, where the precedent is simply not “clear enough that
every reasonable official would interpret it to establish the particular rule the
plaintiff seeks to apply,” Wesby, 138 S. Ct. at 589–90, the qualified immunity bar
applies. As the Supreme Court has recognized, public officials cannot be
expected “to predict the future course of constitutional law” based on their reading
of a handful of non-precedential opinions. Wilson, 526 U.S. at 617–18 (quoting
Procunier v. Navarette, 434 U.S. 555, 562 (1978)). It is “unfair” to subject such
officials to damages liability when even “judges . . . disagree.” Id. at 618.
Neither civil commitment law nor other infectious disease cases had clearly
articulated the substantive due process standard Appellants urge should have
governed Dr. Mullen’s actions. Accordingly, the district court did not err in
affording qualified immunity as to this claim.
B. Procedural Due Process
Appellants next argue that Dr. Mullen violated procedural due process by
failing: (1) to conduct an individualized assessment of Appellants’ risk to public
health; (2) to provide timely notice of the process for judicial review; and (3) to
initiate a judicial hearing whereby Appellants could challenge their detention.
Again, however, Appellants are unable to point to clearly established law that
37
supports the conclusion that every reasonable official would have understood that
these measures were required at the time the challenged events occurred.
The inquiry into the existence of a procedural due process right is guided
by the three-factor balancing test enunciated in Mathews v. Eldridge, 424 U.S. 319
(1976). At the start, because that analysis entails balancing multiple factors,
procedural due process, “unlike some legal rules, is not a technical conception
with a fixed content unrelated to time, place and circumstances.” Gilbert v.
Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Rest. Workers v. McElroy, 367
U.S. 886, 895, (1961)). Rather, “due process is flexible and calls for such
procedural protections as the particular situation demands.” Morrissey v. Brewer,
408 U.S. 471, 481 (1972). “Given this flexible, context-dependent approach, it will
be a rare case in which prior precedents have definitively resolved a novel claim
of procedural due process. That makes particularly fertile ground for qualified
immunity, given that state officials can be liable only for violations of rights that
have been established ‘beyond debate’ and with ‘particular[ity]’ by existing
constitutional precedents.” Francis v. Fiacco, 942 F.3d 126, 149 (2d Cir. 2019)
(quoting White, 137 S. Ct. at 551–52).
38
Again, Appellants and the dissent rely almost exclusively upon cases
imported from the civil commitment context or upon Connecticut state law. But
as already explained, the civil commitment cases are insufficiently analogous to
clearly establish the procedural rights Appellants urge us to adopt in this case.
See Levin v. Adalberto M., 156 Cal. App. 4th 288, 298–02 (2007) (referring, in dicta,
to civil commitment context as “analogous” to the civil detention of a tuberculosis
patient but noting that infectious diseases like tuberculosis “differ[] from mental
illness in ways that justify fewer procedural safeguards, not more”). And “[a]
violation of state law neither gives plaintiffs a § 1983 claim nor deprives
defendants of the defense of qualified immunity to a proper § 1983 claim.” Doe
v. Conn. Dep’t of Child & Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990).
Indeed, we have been unable to find—and Appellants do not identify—any
cases articulating federal procedural due process protections in the quarantine
context. The most analogous case, Greene v. Edwards, 164 W. Va. 326, 327–29
(1980) (per curiam), held that due process guarantees certain procedural rights—
including adequate notice, a right to counsel, and an elevated burden of proof—
when the state seeks to involuntarily confine an individual with tuberculosis. See
also Kirk v. Wyman, 83 S.C. 372, 390 (1909) (“[B]oards of health may not deprive any
39
person of his property or his liberty, unless the deprivation is made to appear, by
due inquiry, to be reasonably necessary to the public health; and such inquiry must
include notice to the person whose property or liberty is involved, and the
opportunity to him to be heard, unless the emergency appears to be so great that
such notice and hearing could be had only at the peril of the public safety.”). But
the Supreme Court of Appeals of West Virginia relied primarily on state law to
reach this conclusion. See Greene, 164 W. Va. at 327–29. And cases from both the
Supreme Court and our Court make clear that the federal procedural due process
guarantee does not require state officials to inform individuals of all the procedural
guarantees they enjoy under state law. See City of W. Covina v. Perkins, 525 U.S.
234, 240-41 (1999) (holding that a city that seizes an owner’s property must inform
the owner that “his property has been seized” but “need not take other steps to
inform him of his [legal] options” because he “can turn to . . . public sources to
learn about the remedial procedures available to him”); United States v. Lopez, 445
F.3d 90, 95 (2d Cir. 2006) (Sotomayor, J.) (holding that failure to inform an alien in
deportation proceedings of his right to seek habeas review did not deny him
meaningful judicial review because “where judicial remedies are readily available
40
in case law and statutes, due process is not offended where no notice of those
remedies is provided”).
The rationale of Perkins and Lopez has at least arguable purchase here, where
Boyko, Skrip, and the Mensah-Siehs all did receive notice that they were subject to
a mandatory quarantine, and where post-quarantine hearings were available to
them under Connecticut law, see Conn. Gen. Stat. § 19a-131b. While the full
panoply of their rights under state law was not immediately conveyed to them in
writing, nor was a hearing convened, Appellants point to no case that clearly
establishes that Dr. Mullen violated the Constitution by failing to undertake these
measures.
C. The Fourth Amendment
Finally, Appellants assert that “Dr. Mullen’s over-inclusive sweep was not
reasonable under the Fourth Amendment,” Appellants Br. 48, because in
quarantining Boyko, Skrip, and the Mensah-Siehs, she “depart[ed] from what is
scientifically justified for a particular disease,” Appellants Reply Br. 9 (quotation
marks omitted). According to Appellants, “all Plaintiffs had no known exposure
to Ebola,” Appellants Br. 39, Boyko had undergone several blood tests confirming
that he did not have the disease, and Boyko and Skrip had been assured by CDC
41
representatives that any interactions with a person in their hotel who later
developed symptoms posed no risk. This claim is essentially the same as their
substantive due process claim but is recast in Fourth Amendment terms.
Qualified immunity affords especial protection to state officials in the
Fourth Amendment context. See Wesby, 138 S. Ct. at 590 (holding that the
“specificity” requirement is “especially important in the Fourth Amendment
context”) (quoting Mullenix, 136 S. Ct. at 308). The Supreme Court has observed,
for instance, that “[p]robable cause ‘turn[s] on the assessment of probabilities in
particular factual contexts’ and cannot be ‘reduced to a neat set of legal rules.’”
Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Therefore, a plaintiff must
“identify a case where an officer acting under similar circumstances . . . was held
to have violated the Fourth Amendment.” Id. (quoting Pauly, 137 S. Ct. at 522).
Appellants have cited no case in which a court has invalidated a quarantine
order under the Fourth Amendment. And although they characterize their
quarantines as “scientifically unjustified,” Appellants Br. 58, a number of factors
could support a determination that the quarantines were at least arguably
reasonable as a matter of Fourth Amendment law. Cf. Camara v. Mun. Ct. of City
& Cty. of S.F., 387 U.S. 523, 538 (1967) (“Where considerations of health and safety
42
are involved, the facts that would justify an inference of ‘probable cause’ to make
an inspection are clearly different from those that would justify such an inference
where a criminal investigation has been undertaken.” (quoting Frank v. Maryland,
359 U.S. 360, 383 (1959) (Douglas, J., dissenting)). Put simply, it was not clearly
established that it was unreasonable, pursuant to the Fourth Amendment, for
Appellees to quarantine individuals traveling from a nation suffering from an
Ebola epidemic for the duration of the disease’s incubation period. And in such
circumstances, Dr. Mullen is entitled to qualified immunity.
To be clear, we need not and do not reach the merits of Appellants’
constitutional claims. We conclude simply that the district court did not err in
determining that no clearly established law existed at the time of Dr. Mullen’s
actions such that every reasonable official would have known that her conduct fell
outside the boundaries of due process and Fourth Amendment constraints. No
significant precedent had previously articulated the requirements of substantive
due process, procedural due process, or the Fourth Amendment in the quarantine
or infectious diseases contexts, as urged by Appellants here. In such
circumstances, the district court properly concluded that Dr. Mullen is entitled to
qualified immunity.
43
CONCLUSION
We have considered Appellants’ remaining arguments and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court but REMAND with instructions to amend the judgment to clarify
that the state law claims were dismissed without prejudice.
44
CHIN, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority's decision to affirm the dismissal of the
claims for prospective or injunctive relief for lack of standing and the denial of
class certification, but I dissent as to its holding that the claims for damages are
barred by qualified immunity.
As we have seen most strikingly with the current epidemic, the
government surely has a compelling interest in preventing the spread of disease.
At the same time, however, the government's power to protect the community
may not be exercised in an unreasonable or arbitrary manner. While intrusions
on personal liberties will of course be necessary to safeguard public health and
safety, they must be based on scientific and not political considerations. In my
view, plaintiffs-appellants Ryan Boyko and Laura Skrip and Louise Mensah-Sieh,
Nathaniel Sieh, and their children (collectively, "plaintiffs") plausibly alleged that
defendant-appellee Dr. Jewel Mullen, then-Commissioner of Public Health,
violated their constitutional rights by ordering them, in connection with the
Ebola outbreak in 2014, into quarantine for two weeks in the case of Boyko and
Skrip and three weeks in the case of the Mensah-Sieh family, when quarantine
was not scientifically or medically warranted or justified. Moreover, in my view,
plaintiffs plausibly alleged violations of clearly established rights such that, at
the pleadings stage of the case, it was error for the district court to dismiss these
claims based on qualified immunity. Accordingly, I would reverse as to
plaintiffs' claims for damages.
I.
A.
More than a century ago, the Supreme Court recognized the need to
balance the government's interest in protecting the public health and safety by
controlling the spread of disease against the rights of individuals to be free from
unreasonable restraint. In Jacobson v. Massachusetts, in upholding the authority of
states to require vaccinations in response to an outbreak of smallpox, the
Supreme Court acknowledged that a state's power to fight the spread of disease
is not without limit:
[I]t might be that an acknowledged power of a local community to
protect itself against an epidemic threatening the safety of all might
be exercised in particular circumstances and in reference to
particular persons in such an arbitrary, unreasonable manner, or
might go so far beyond what was reasonably required for the safety
of the public, as to authorize or compel the courts to interfere for the
protection of such persons.
197 U.S. 11, 28 (1905). The Court also emphasized that:
2
if a statute purporting to have been enacted to protect the public
health, the public morals, or the public safety, has no real or
substantial relation to those objects, or is, beyond all question, a
plain, palpable invasion of rights secured by the fundamental law, it
is the duty of the courts to so adjudge, and thereby give effect to the
Constitution.
Id. at 31. This reasoning, of course, applies not just to statutes but to any
governmental restriction on individual rights taken ostensibly to protect public
health and safety.
It has long been established that the Due Process Clauses of the Fifth
and Fourteenth Amendments prohibit the government from infringing on
"'fundamental' liberty interests . . . unless the infringement is narrowly tailored to
serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-02 (1993).
Indeed, "even though the governmental purpose be legitimate and substantial,
that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved." Shelton v.
Tucker, 364 U.S. 479, 488 (1960).
"Freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause," Foucha v. Louisiana, 504 U.S. 71, 80
(1992), and "[i]t is clear that 'commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection,'" Jones v. United States,
3
463 U.S. 354, 361 (1983) (emphasis added) (quoting Addington v. Texas, 441 U.S.
418, 425 (1979)); accord Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983)
("Civil commitment for any purpose requires due process protection.") (emphasis
added). Hence, a government-imposed quarantine implicates the Constitution,
as mandatory quarantine is a form of civil detention -- an involuntary
confinement and a deprivation of liberty.
Courts have applied these due process concepts to quarantine or
similar isolation orders and considered whether the restrictions were reasonable
in relation to the goal of protecting the health of others. In Jolly v. Coughlin, for
example, this Court upheld a preliminary injunction barring prison officials from
keeping an inmate in "medical keeplock" after he refused, for religious reasons,
to take a tuberculosis test, where he did not have active tuberculosis and could
be monitored for tuberculosis by other means. 76 F.3d 468, 479-80 (2d Cir. 1996).
In two cases involving the detention of individuals with tuberculosis who were
either unwilling or unable to comply with medical directives, the courts applied
due process principles. While the courts ultimately determined that isolation
was the best option in both cases, they considered whether less restrictive means
were available. See City of Newark v. J.S., 279 N.J. Super. Ct. Law Div. 178, 184-85
4
(1993); Matter of City of New York v. Antoinette R., 630 N.Y.S.2d 1008, 1019 (N.Y.
Sup. Ct. 1995). In an Ebola case in Maine, the court concluded that isolation was
not required to protect others from the danger of infection, determining that a
less restrictive monitoring order was sufficient. See Mayhew v. Hickox, No. CV-
2014-36 (Dist. Ct., Fort Kent, ME Oct. 31, 2014); cf. Hickox v. Christie, 205 F. Supp.
3d 579, 593-94 (D.N.J. 2016) (dismissing federal claims brought by nurse who was
subjected to mandatory quarantine, based on qualified immunity doctrine). And
years ago, in Jew Ho v. Williamson, the court found that an ordinance sealing off
an area of San Francisco in such a way as "to operate against the Chinese
population only," purportedly to prevent the spread of the bubonic plague, 103
F. 10, 23 (Cir. Ct. N.D. Ca. 1900), was "unreasonable, unjust, and oppressive," id.
at 26. 1
In Connecticut, due process protections are expressly written into
the statute governing quarantine. The Connecticut statute provides (and
provided in 2014) that "[t]he commissioner . . . may order into quarantine or
11 See also Wong Wai v. Williamson, 103 F. 1, 3, 7 (Cir. Ct. N.D. Ca. 1900) (striking
down regulation requiring inoculation of "all the Chinese residents" of the city and
county of San Francisco against the bubonic plague and restricting their ability to travel,
as discriminatory and not supported by any evidence that "the Asiatic or Mongolian
race . . . [was] more liable to the plague than any other").
5
isolation, as appropriate, any individual . . . or individuals . . . if the
commissioner determines that such individual or individuals pose a significant
threat to the public health and that quarantine or isolation is necessary and the
least restrictive alternative to protect or preserve the public health." Conn. Gen.
Stat. Ann. § 19a-131b(a) (emphasis added).
Even "[w]hen government action depriving a person of life, liberty,
or property survives substantive due process scrutiny," procedural due process
requires that the action "still be implemented in a fair manner." United States v.
Salerno, 481 U.S. 739, 746 (1987). This generally requires consideration of three
distinct factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Procedural due process applies to involuntary confinement. See,
e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). This is because "[p]rocedural due
process imposes constraints on governmental decisions which deprive
6
individuals of 'liberty' or 'property' interests within the meaning of the Due
Process Clause of the Fifth or Fourteenth Amendment." Eldridge, 424 U.S. at 332.
Although "the Court usually has held that the Constitution requires some kind of
hearing before the State deprives a person of liberty," Zinermon v. Burch, 494 U.S.
113, 127 (1990), "post-deprivation hearings are appropriate and constitutionally
permissible in emergency situations," Bailey v. Pataki, 708 F.3d 391, 406 (2d Cir.
2013). Notably, Connecticut law also guarantees a written quarantine order that
informs the recipient of the right to a hearing and how to request it; an
individuated assessment of risk; and an opportunity to seek post-deprivation
judicial review. Conn. Gen. Stat. § 19a-131b(c), (d), (f).
B.
In my view, plaintiffs plausibly alleged both substantive and
procedural due process violations.
First, the complaint alleges that Boyko and Skrip as well as the
Mensah-Sieh family were involuntarily confined and deprived of their
fundamental right to liberty, for two weeks as to Boyko and Skrip and three
weeks as to the Mensah-Sieh family, after arriving in the United States from
Liberia. Police officers were stationed outside their homes to enforce the
7
quarantine orders. As alleged in the complaint, the quarantine caused plaintiffs
to suffer physically, emotionally, and financially. For example, Boyko was "cut
off from family, friends, and colleagues," he was unable to spend time with his
son, his girlfriend was prohibited by the quarantine order from entering their
shared apartment, and he was unable to meet his employment obligations. J.
App'x at 37. Skrip's research and work at Yale as well as her volunteer activities
were adversely impacted. And the inability of the Mensah-Sieh family to leave
their residence (a single room in a basement for six individuals) "severely
diminish[ed] their everyday life activities including family relations, social
contacts, work options, economic independence, educational advancement, and
cultural enrichment." J. App'x at 48.
Second, the complaint alleges -- in great detail and with ample
support -- that quarantine was not necessary in the circumstances here and that
less restrictive alternatives existed to protect public health and safety. As alleged
in the complaint, by the time the quarantine orders were issued in Fall 2014,
doctors and scientists had been dealing with Ebola for some twenty-two months
and the science was well-established. "The overwhelming consensus in the
scientific community at the time was, and remains, that asymptomatic
8
individuals cannot transmit Ebola and do not require quarantine." J. App'x at 29.
Rather, Ebola "is spread through direct physical contact with the bodily fluids of
a symptomatic person, the body of a person who has died from Ebola, or objects
contaminated with the virus, such as used needles." J. App'x at 26. Symptoms
include fever, headache, joint and muscle pain, diarrhea, and vomiting. Unlike
diseases such as tuberculosis (and COVID-19), Ebola cannot be spread through
the air.
According to the complaint, on August 22, 2014, the Centers for
Disease Control and Prevention (the "CDC") released guidance for monitoring
"asymptomatic individuals returning from West Africa with 'no risk' or 'low risk'
of exposure" to Ebola, and it "recommended only self-monitoring or active
monitoring for twenty-one days and recommended no movement restrictions or
quarantine." J. App'x at 27. The guidance did not recommend quarantine even
for individuals with a high risk of exposure. As the public health experts point
out in their amici brief, overly restrictive responses to epidemics have adverse
consequences, as health care professionals, scientists and epidemiologists, and
aid workers will be deterred from traveling to impacted countries to provide
medical help and other assistance.
9
In October 2014, the CDC, in conjunction with the Department of
Homeland Security ("DHS"), implemented a screening process for individuals
arriving in the United States from Liberia, Guinea, and Sierra Leone, ensuring
that they had no symptoms or a known history of exposure to Ebola before
permitting them to exit the airport, and referring them to the appropriate state or
local health authorities if circumstances warranted. Plaintiffs were
asymptomatic when they arrived in the United States from Liberia, and they had
not been in contact with symptomatic individuals. They went through the CDC
screening procedures and were cleared to enter the country. While Boyko
developed a fever at one point after returning to the United States, he was given
a blood test which came back negative for Ebola (in fact, he was tested three
times, with a negative result each time). The complaint alleges that Dr. Mullen
and other state officials knew that plaintiffs were "not sick and not a risk to
public health." J. App'x at 29 (quoting statement made by a Department of Public
Health spokesperson in October 2014). Yet, the complaint alleges, they ordered
plaintiffs into quarantine, even though they knew that quarantine was not
necessary and that alternative, less restrictive measures -- such as monitoring --
were available to protect the public health and safety. Connecticut's quarantine
10
program did not provide for individual risk assessments of travelers from
affected countries, and did not, for example, consider whether they had had past
contact with Ebola-infected persons. Rather, the policy required that all
asymptomatic individuals arriving from an affected country were to be
quarantined at home for twenty-one days.
Moreover, the complaint further alleges that on October 27, 2014, the
Connecticut officials revised their quarantine guidelines so that asymptomatic
travelers arriving from affected areas were subject only to active monitoring,
unless an individualized assessment determined quarantine was necessary. The
officials did not, however, release plaintiffs from quarantine or review whether
continued quarantine was necessary.
Third, the complaint alleges that the Mensah-Sieh family did not
receive written notice of the quarantine order or any information about their
right to challenge the quarantine order. It alleges that Skrip did not receive any
such information either, until she requested it five days after she was orally
informed of her quarantine. Moreover, the complaint alleges that plaintiffs did
not receive individualized consideration of whether quarantine was warranted in
their cases, either initially or after the state changed its policies.
11
In short, in my view the complaint alleges, plausibly and with great
detail, that Dr. Mullen and the other state officials infringed on plaintiffs'
fundamental right to liberty, without justification or individualized
consideration, when alternative, less restrictive measures were available to
protect the public health and safety.
II.
A.
Qualified immunity "protects government officials from suits
seeking to impose personal liability for money damages based on unsettled
rights or on conduct that was not objectively reasonable." Tenenbaum v. Williams,
193 F.3d 581, 595-96 (2d Cir. 1999). In assessing a qualified immunity defense,
the court must "accept as true all well-pled factual allegations, and draw all
reasonable inferences in the plaintiff's favor." Warney v. Monroe Cty., 587 F.3d
113, 116 (2d Cir. 2009). "The defendant bears the burden of pleading and proving
the affirmative defense of qualified immunity." Blissett v. Coughlin, 66 F.3d 531,
539 (2d Cir. 1995); see also Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011).
To determine whether an individual is entitled to qualified
immunity, the court must "engage in a two-part inquiry: whether the facts
12
shown 'make out a violation of a constitutional right,' and 'whether the right at
issue was clearly established at the time of defendant's alleged misconduct.'"
Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting Pearson v.
Callahan, 55 U.S. 223, 232 (2009)). While there need not be "a case directly on
point for a right to be clearly established, existing precedent must have placed
the statutory or constitutional question beyond debate." White v. Pauly, 137 S. Ct.
548, 551 (2017) (citation omitted).
As discussed above, in my view the facts alleged in the complaint
make out a violation of plaintiffs' rights to substantive and procedural due
process. Similarly, in my view these rights were clearly established when Dr.
Mullen and the other state officials required plaintiffs to be quarantined. I
believe it was error for the district court, on a motion to dismiss when it should
have assumed the factual allegations of the complaint to be true, to sustain the
affirmative defense of qualified immunity as a matter of law.
The district court held that Dr. Mullen's actions did not violate
clearly established law because there is no case law regarding an individual's
substantive and procedural due process rights in a quarantine scenario, and that,
in any event, quarantine here was "objectively reasonable." Liberian Cmty. Ass'n
13
of Connecticut v. Malloy, No. 3:16-CV-00201(AVC), 2017 WL 4897048, at *9 (D.
Conn. Mar. 30, 2017). As discussed above, however, there are some quarantine
and other isolation cases, as well as other analogous cases, including, for
example, civil commitment cases dealing with compulsory confinement to
protect public safety. And while it may be true that there have been few
epidemic cases over the years, the Supreme Court has noted that a "general
constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though 'the very action
in question has [not] previously been held unlawful.'" United States v. Lanier, 520
U.S. 259, 271 (1997) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The general constitutional rules discussed above are beyond debate.
Freedom from physical restraint is a fundamental liberty interest that cannot be
infringed upon by the government unless the restriction is narrowly tailored to
further a compelling state interest and less restrictive alternatives to accomplish
that goal are not available. See, e.g., Reno, 507 U.S. at 301-02; Shelton, 364 U.S. at
488. Moreover, even assuming some ambiguity in the case law, the Connecticut
statute -- which incorporates due process protections -- applies with obvious
clarity here, as the statute specifically provides that quarantine may be ordered
14
only if necessary to protect the public health, and only if quarantine is the least
restrictive alternative available. The complaint alleges in great detail that, given
the nature of Ebola, the CDC, scientists, and health experts uniformly agreed that
quarantine was not necessary for individuals like plaintiffs, who were
asymptomatic and who were no-risk or low-risk for Ebola exposure, and that less
restrictive alternatives, such as active monitoring, were available to protect the
public. Hence, the complaint plausibly alleges that it was not objectively
reasonable for Dr. Mullen and the other state officials to order plaintiffs into
quarantine, and to have done so without proper notice or individualized
assessment or other procedural safeguards.
Finally, I note that the complaint plausibly alleges that the
Connecticut officials did not act in good faith, as they purportedly imposed
quarantine on plaintiffs not based on scientific or medical reasons but for
political reasons. The complaint alleges that Dr. Mullen and other state officials
knew that quarantine was not necessary to protect the public health. But in
October 2014, the Governor of Connecticut was "actively campaigning to be re-
elected . . . [and p]ublic polling and media accounts at the time described the
gubernatorial race as extremely close." J. App'x at 27. The Connecticut officials
15
adopted a policy, as the Governor's office apparently touted, that was "more
stringent" than guidelines issued by the CDC, one that mandated quarantine
even for asymptomatic individuals, when quarantine was not scientifically
justified. J. App'x at 28-29. The complaint alleges that the state officials ordered
plaintiffs to be quarantined and then continued them in quarantine, even though
they knew plaintiffs did not present a risk to public health, because of
"sensationalist news accounts [that] stoked public fear that travelers might bring
Ebola across the ocean to [Connecticut]." J. App'x at 20.
These allegations, in my view, are plausible. Accordingly, I dissent
from the majority's affirmance of the district court's dismissal of plaintiffs' claims
for damages.
16