22-570-cv

Marciano v. Adams

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 

(WITH THE NOTATION ”SUMMARY ORDER”). A PARTY CITING TO A 

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT 

REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 16 3 th day of May, two thousand twenty-three.

4

5 PRESENT: JOSÉ A. CABRANES,

6 GERARD E. LYNCH,

7 RAYMOND J. LOHIER, JR.,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 ANTHONY MARCIANO, individually and on 

11 behalf of all other individuals similarly situated,

12

13 Plaintiff-Appellant,

14 

15 v. No. 22-570-cv

16

17 ERIC ADAMS, Mayor of the City of New York, in 

18 his official capacity; ASHWIN VASAN, 

19 Commissioner of Health and Mental Hygiene, in 

20 his official capacity; KEECHANT SEWELL, Police 

21 Commissioner, in her official capacity; THE NEW 

22 YORK CITY BOARD OF HEALTH; and THE 
2

1 CITY OF NEW YORK,

2

3 Defendants-Appellees.

4 ------------------------------------------------------------------

5 FOR PLAINTIFF-APPELLANT: PATRICIA A. FINN, Patricia Finn 

6 Attorney, P.C., Nanuet, NY

7

8 FOR DEFENDANTS-APPELLEES: JESSE A. TOWNSEND, Of 

9 Counsel (Richard Dearing, 

10 Claude S. Platton, Of Counsel, 

11 on the brief), for Sylvia O. 

12 Hinds-Radix, Corporation 

13 Counsel of the City of New 

14 York, New York, NY

15 Appeal from a judgment of the United States District Court for the 

16 Southern District of New York (Jed S. Rakoff, Judge).

17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

18 AND DECREED that the appeal is DISMISSED. 

19 Anthony Marciano appeals from a judgment of the United States District 

20 Court for the Southern District of New York (Rakoff, J.) dismissing his claims 

21 against the City of New York (the “City”) and certain of its agencies and officers. 

22 Marciano, a New York City Police Department detective, argues that the 

23 Defendants’ decision to mandate that employees of the City receive a vaccination 

24 against COVID-19 was ultra vires, preempted by state and federal law, and in 
3

1 violation of the federal Constitution. The Defendants move to dismiss this 

2 appeal as moot. We assume the parties’ familiarity with the underlying facts 

3 and the record of prior proceedings, to which we refer only as necessary to 

4 explain our decision to grant the Defendants’ motion to dismiss the appeal.

5 “[U]nder the general rule of mootness, courts’ subject matter jurisdiction 

6 ceases when an event occurs during the course of the proceedings or on appeal 

7 that makes it impossible for the court to grant any effectual relief whatever to a 

8 prevailing party.” County of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010) 

9 (quotation marks omitted). Accordingly, a “plaintiff’s personal stake in the 

10 outcome of the litigation must be extant at all stages of review, not merely at the 

11 time the complaint is filed.” Stagg, P.C. v. U.S. Dep’t of State, 983 F.3d 589, 601 

12 (2d Cir. 2020) (quotation marks omitted). “Typically, no live controversy 

13 remains where a party has obtained all the relief she could receive on the claim 

14 through further litigation.” Ruesch v. Comm’r of Internal Revenue, 25 F.4th 67, 

15 70 (2d Cir. 2022) (quotation marks omitted).

16 Marciano seeks declaratory and injunctive relief prohibiting the 

17 Defendants from enforcing their mandate that City employees receive a 
4

1 vaccination against COVID-19. But the Defendants have repealed that 

2 mandate, and we “cannot enjoin what no longer exists.” Exxon Mobil Corp. v. 

3 Healey, 28 F.4th 383, 393 (2d Cir. 2022). Nor can we award declaratory relief, 

4 which requires an ongoing, “real and substantial” underlying dispute to confer 

5 subject matter jurisdiction. California v. Texas, 141 S. Ct. 2104, 2115–16 (2021) 

6 (quotation marks omitted); see Exxon Mobil, 28 F.4th at 394–95 (“[A] request for 

7 a declaratory judgment as to a past violation cannot itself establish a case or 

controversy to avoid mootness.”).1 8 

9 In this case, no exception to the mootness doctrine applies. This case does 

10 not fit within the “capable of repetition yet evading review” mootness exception, 

11 which “applies only in exceptional situations, where (1) the challenged action is 

12 in its duration too short to be fully litigated prior to cessation or expiration, and 

13 (2) there is a reasonable expectation that the same complaining party will be 

14 subject to the same action again.” Kingdomware Techs., Inc. v. United States, 

1 Marciano’s request for attorneys’ fees and costs does not affect this calculus. See

London v. Polishook, 189 F.3d 196, 200 (2d Cir. 1999) (noting that where “the only 

remaining issues would be attorneys’ fees and costs, neither” would be “sufficient to 

keep the dispute alive”).
5

579 U.S. 162, 170 (2016) (cleaned up). 1 2 Marciano offers only “speculation” that

2 he personally could be subject to another similar vaccine mandate; such a 

3 “theoretical possibility” “does not rise to the level of a reasonable expectation or 

4 demonstrated probability of recurrence.” Exxon Mobil, 28 F.4th at 396 

5 (quotation marks omitted). And even were the Defendants to reimpose this 

6 same vaccine mandate, Marciano does not dispute that, subsequent to filing this 

7 suit, he has now received the COVID-19 vaccine, and would therefore now be 

8 compliant with that mandate. He therefore cannot show, as he must, that “the 

9 same controversy will recur involving the same complaining party.” Fed. 

10 Election Comm’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 463 (2007) 

11 (quotation marks omitted).

12 The voluntary cessation exception is likewise inapplicable because “there 

13 is no reasonable expectation that the alleged violation will recur” and because 

14 the Defendants’ repeal of the vaccination mandate has “completely and 

2 This standard applies “[i]n the absence of a class action,” including, as here, where a

putative class plaintiff “brought suit assertedly on behalf of all other similarly situated 

. . . employees, yet made no motion for class certification pursuant to Fed. R. Civ. P. 23.” 

Haley v. Pataki, 60 F.3d 137, 141 & n.2 (2d Cir. 1995). 
6

1 irrevocably eradicated the effects of the alleged violation,” given that Marciano 

2 seeks only injunctive and declaratory relief. Am. Freedom Defense Initiative v. 

3 Metro. Transp. Auth., 815 F.3d 105, 109 (2d Cir. 2016) (quotation marks omitted). 

4 And, again, even were the Defendants to reinstate the mandate, Marciano’s 

5 undisputed vaccination status ensures that such a decision would no longer have 

6 any effect on his employment status. See Conn. Citizens Def. League, Inc. v. 

7 Lamont, 6 F.4th 439, 446 (2d Cir. 2021) (holding that the voluntary cessation 

8 exception “does not aid a plaintiff whose own conduct saps the controversy of 

9 vitality” (quotation marks omitted)); DiMartile v. Cuomo, 834 F. App’x 677, 678 

10 (2d Cir. 2021) (summary order) (dismissing as moot an engaged couple’s 

11 challenge to pandemic-era restrictions on non-essential gatherings like weddings 

12 where the couple “state[d] that they no longer intend to hold a wedding while 

13 New York’s COVID-19 gathering limitations are in effect”).

14 Accordingly, Marciano’s appeal is moot. “When a civil case becomes 

15 moot pending appellate adjudication, the established practice in the federal 

16 system is to reverse or vacate the judgment below and remand with a direction 

17 to dismiss.” Hassoun v. Searls, 976 F.3d 121, 125 (2d Cir. 2020) (quoting
7

1 Arizonans for Off. English v. Arizona, 520 U.S. 43, 71 (1997)) (quotation marks 

2 omitted). We follow that practice here because there is no suggestion that 

3 Marciano intended to “escape the collateral consequences of the decision below” 

4 by deliberately mooting the appeal when he received the COVID-19 vaccine. 

5 Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 

6 F.3d 114, 122 (2d Cir. 2001).

7 We have considered Marciano’s remaining arguments and conclude that 

they are without merit.3 8 For the foregoing reasons, the Defendants’ motion to 

9 dismiss the appeal is GRANTED, the appeal is DISMISSED, and the case is 

3 The Defendants also request that we unseal references to Marciano’s vaccination 

status in the parties’ filings. The Defendants themselves initially sought permission to 

seal those references in their motion to dismiss and asked this Court to decide whether 

they should remain sealed. The Defendants did so because Marciano asserted that his 

vaccination status was private under the Health Insurance Portability and 

Accountability Act (HIPAA). We construe the Defendants’ request as a motion to 

unseal the parties’ filings in connection with the Defendants’ motion to dismiss. Even 

assuming that Marciano has a right to privacy regarding his COVID-19 vaccination 

status that could justify keeping that information under seal, Marciano has waived that 

right by alleging in his (unsealed) complaint that, at the time of its filing, he was not 

vaccinated. Accordingly, the Defendants’ motion to unseal references to Marciano’s 

vaccination status is GRANTED.
8

1 REMANDED with instructions to the District Court to vacate its order and 

2 judgment and dismiss the case as moot. 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk of Court