Whether the Second Circuit erred in concluding that state officials could not have comprehended the potential rights violations in the COVID-19 nursing home transfer directive

Respondent Andrew J. Cuomo is the former Governor of the State of New York from 2011 until his resignation in 2021. On March 25, 2020 the Cuomo administration issued a COVID-19 Transfer Directive to all New York hospitals and nursing homes requiring that all nursing homes must comply with the expedited receipt of residents from hospitals while, at the same time, prohibiting nursing homes from testing any hospital transferee for COVID-19. All Respondents, to be separately described, worked in concert to effectuate an abrupt, compulsory and large-scale transfer of the state’s then hospitalized COVID-19 patients to the state’s nursing homes despite the immediately announced condemnation of this action by the leading patient-oriented medical experts in the field of elderly care. Promptly thereafter and as predicted by the outside medical experts, the number of COVID-19 deaths at the state’s nursing homes grew by the thousands which the Respondents then endeavored to cover up, until it became too obvious to hide. The Directive was finally rescinded on May 10, 2020, but by that point, 9,000 COVID-positive patients had been transferred and 15,000 patients residing there during the period March 25-May 10, 2020, eventually died of COVID-19. The questions presented are: 1. How could the Second Circuit have reasonably concluded that the State Respondents Governor Cuomo and Ms. DeRosa, his Chief of Staff, could not have ii comprehended that the Directive would violate the Petitioners’ rights when both Respondents have publicly stated that they played “no role” in the development of the Directive and had no knowledge of the lethal nursing home aspects of the Directive until April 20, 2020? 2. How could the Second Circuit have reasonably concluded that State Respondent Dr. Zucker, the Commissioner of the New York State Department of Health (“NYSDOH”) could not have comprehended that the Directive would violate the Petitioners’ rights when, as he admitted as part of a congressional investigation, that he had never seen the Directive until the day it was promulgated? 3. Did the State Respondents forfeit their right to assert the qualified immunity defense by engaging in conduct outside of the scope of their “official acts” in the form of delegating a government function to the private sector with no independent government input? 4. Were the hospital-related Respondents not just participants but the actual authors of the text of the March 25 Directive thereby converting themselves into “state actors” in the admitted absence of independent governmental action? 5. Whether, in light of this Court’s reversal and remand to the Second Circuit in National Rifle Assoc. of Am. v. Vullo , 602 U.S. 190 (2024) with emphasis on the obligation to draw reasonable inferences in the claimant’s favor at the Motion to Dismiss stage, the Second Circuit erred by not allowing discovery to proceed given the shocking factual findings already in the pleadings?