Am. Fed'n of Gov't Emps. ("AFGE") Local 501 v. Biden

• Decision Date: 22 December 2021
• Docket Number: CASE NO. 21-23828-CIV-LENARD
• Citation: 576 F.Supp.3d 1155
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES ("AFGE") LOCAL 501 and Council of Prison Locals, CPL 33, Plaintiffs, v. Joseph R. BIDEN, in his official capacity, as President of the United States, Michael Carvajal, in his official capacity, as the Director of the Federal Bureau of Prisons, Eugene Carlton, in his official capacity, as the Warden of the Miami Federal Detention Center, Merrick Garland, in his official capacity, as Attorney General of the United States, U.S. Department of Justice, Federal Bureau of Prisons, Kiran Ahuja, in her official capacity, as Director of the Office of Personnel Management, and as Co -chair of the Safer Federal Workforce Task Force, and Jeffrey Zients, in his official capacity, as Co -chair of the Safer Federal Workforce Task Force and COVID-19 Response Coordinator, Defendants.
• Court: U.S. District Court — Southern District of Florida

576 F.Supp.3d 1155

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES ("AFGE") LOCAL 501 and Council of Prison Locals, CPL 33, Plaintiffs,

v.Joseph R. BIDEN, in his official capacity, as President of the United States, Michael Carvajal, in his official capacity, as the Director of the Federal Bureau of Prisons, Eugene Carlton, in his official capacity, as the Warden of the Miami Federal Detention Center, Merrick Garland, in his official capacity, as Attorney General of the United States, U.S. Department of Justice, Federal Bureau of Prisons, Kiran Ahuja, in her official capacity, as Director of the Office of Personnel Management, and as Co -chair of the Safer Federal Workforce Task Force, and Jeffrey Zients, in his official capacity, as Co -chair of the Safer Federal Workforce Task Force and COVID-19 Response Coordinator, Defendants.

CASE NO. 21-23828-CIV-LENARD

United States District Court, S.D. Florida.

Signed December 22, 2021

Mark Jay Berkowitz, Fort Lauderdale, FL, for Plaintiffs.

Charles E.T. Roberts, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

ORDER DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Plaintiffs American Federation of Government Employees ("AFGE") Local 501 and Council of Prison Locals, CPL 33's Motion for the Issuance of a Preliminary Injunction, ("Motion," D.E. 19), filed November 12, 2021. The Government filed a Response on December 16, 2021, ("Response," D.E. 31), to which Plaintiffs filed a Reply on December 20, 2021, ("Reply," D.E. 32). Upon review of the Motion, Response, Reply, and the record, the Court finds as follows.

I. Introduction¹

"The United States is currently facing a public health emergency as the result of a novel corona virus, which causes the disease COVID-19."² COVID-19 "is an infectious disease caused by the SARS-CoV-2 virus."³ "COVID-19 is highly contagious and is transmitted mostly through respiratory droplets."⁴ The most common symptoms are fever, cough

, tiredness, and loss of taste or smell, while more serious symptoms include difficulty breathing, loss of speech or mobility, and chest pain.⁵ "Anyone can get sick with COVID-19 and become seriously ill or die at any age."⁶

COVID-19 "emerged in Wuhan, China, at the end of 2019. The virus rapidly spread across China and the rest of the world."⁷ Since then, the virus has mutated into new variants which are more contagious than the original virus.^{8 ,9 ,10}

To date, there have been 274,628,461 confirmed cases of COVID-19 worldwide, resulting in 5,358,978 deaths.¹¹ In the United States alone there have been 51,115,304 confirmed cases of COVID-19, resulting in 805,112 deaths.¹² "COVID-19 is the ‘deadliest disease in American history.’ "¹³

In response to the COVID-19 pandemic, pharmaceutical companies developed vaccines.¹⁴ There are currently three vaccines that are approved or authorized in the United States to prevent COVID-19—those developed by (1) Pfizer-BioNTech ("Pfizer"), (2) Moderna, and (3) Johnson & Jonson's Janssen ("J&J").¹⁵ In clinical studies, the Pfizer vaccine was 95% effective at preventing COVID-19 in people ages 16 years and older;¹⁶ the Moderna vaccine was 94.1% effective at preventing COVID-19 in people ages 18 years and older;¹⁷ and the J&J vaccine was 66.3% effective at preventing COVID-19.¹⁸ All three vaccines are highly effective at preventing severe illness, hospitalizations, and death in people who do become infected with COVID-19 after receiving the vaccination

.¹⁹

II. Background²⁰

On September 9, 2021, the President of the United States, Defendant Joseph R. Biden, signed Executive Order No. 14043, 86 Fed. Reg. at 50989 (Sept. 9, 2021), titled "Requiring Coronavirus Disease 2019 Vaccination for Federal Employees[,]" ("Executive Order"). (Am. Compl. ¶ 29.) The Executive Order required that "each agency shall implement ... a program to require COVID-19 vaccinations

, for all of its federal employees." (Id. ¶ 30.) The Executive Order further required the Whitehouse Safer Workforce Task Force to issue guidance for agencies by September 16, 2021. (Id. ¶ 31.)

On September 16, 2021, the Whitehouse Safer Workforce Task Force updated the "Frequently Asked Questions" ("FAQs") section of its website. (Id. ¶ 32.) The FAQs state that exceptions to the vaccine requirement are to be made in "limited circumstances, where the law requires an exception." (Id. ¶ 32 n.3.)

On October 1, 2021, the Whitehouse Safer Workforce Task Force established a November 22, 2021 deadline for federal employees to be fully vaccinated.²¹ (Id. ¶ 35.) "[F]ederal agencies are authorized to begin the disciplinary process for employees who refuse to comply[ ] with the vaccination

mandate on November 9, 2021, since a period of two weeks[ ] are required[ ] from the second Moderna or Pfizer shot, and the single dose Johnson & Johnson vaccine for the vaccine to provide full protection." (Id. ) The enforcement or disciplinary process begins with a five-day counseling period during which federal agencies must provide a non-compliant employee with information on the benefits of the vaccine and how to obtain the vaccine. (Id. ¶ 36.) Continued non-compliance during the suspension can be followed by a removal proposal, but unique operational needs of an agency and the circumstances affecting a particular employee may warrant departure from this guidance, if necessary. (Id. ¶ 36.) If a federal employee does not comply with the requirement to become fully vaccinated and has not been provided with an exemption, an agency may pursue disciplinary action, up to and including removal from federal service. (Id. ¶ 41.) Additionally, the Whitehouse Safer Workforce Task Force has stated that new hires in the federal workforce must be required to prove that they are fully vaccinated before they report for their first day on the job. (Id. ¶ 42.) An agency may rescind a job offer if a new hire does not meet a requirement of a job announcement. (Id. ¶ 43.)

Plaintiff AFGE Local 501 is a duly authorized and constituted labor organization, operating as the exclusive bargaining representative for employees of the Federal Bureau of Prisons, an agency under the auspices of the United States Department of Justice. (Id. ¶ 15.) Plaintiff Council of Prison Locals, CPL 33 ("CPL 33") is the district office for local labor organizations representing bargaining unit employees of the Federal Bureau of Prisons. (Id. ¶ 16.) AFGE Local 501 is a constituent local union of CPL 33. (Id. ¶¶ 15-16.)

On October 30, 2021, Plaintiffs initiated this putative class action lawsuit challenging the federal employee vaccine requirement. (D.E. 1.)

On November 12, 2021, Plaintiffs filed the operative Amended Complaint for a Preliminary Injunction which asserts four causes of action:

Count I: Right to Privacy, Personal Autonomy and Personal Identity under the Fourteenth Amendment, 42 U.S.C. § 1983 ;

Count II: Violation of the Privacy Act, 5 U.S.C. § 552a(e) ;

Count III: Violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553 ; and

Count IV: Violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983.

(D.E. 18.) The Defendants are Joseph R. Biden, in his official capacity as President of the United States of America, (id. ¶ 18); Michael Carvajal, in his official capacity as Director of the Federal Bureau of Prisons, (id. ¶ 19); Eugene Carlton, in his official capacity as the Warden of the Federal Detention Center in Miami, Florida, (id. ¶ 21); Merrick Garland, in his official capacity as Attorney General of the United States, (id. ¶ 22); Kiran Ahuja, in her official capacity as Director of the Office of Personnel Management, (id. ¶ 24); and Jeffrey Zients, in his official capacity as the Co-chair of the Safer Federal Workforce Task Force, (id. ¶ 25).²² The Clerk issued summonses as to each Defendant and the acting United States Attorney for the Southern District of Florida, Juan Antonio Gonzalez. (D.E. 8, 12, 21.)

On November 12, 2021, Plaintiffs filed the instant Motion for the Issuance of a Preliminary Injunction. (D.E. 19.) The Motion does not contain a certificate of service or otherwise indicate that Defendants were served with a copy of the Motion.

On December 7, 2021, Plaintiffs filed a Motion to Expedite Proceedings. (D.E. 24.) Therein, they state that the federal employee vaccine mandate is scheduled to go into effect January 4, 2022 and "request that this matter be adjudicated prior to the current deadline of January 4, 2022; and they further request that the Court order the Defendants to comply with an expedited briefing schedule." (Id. at 2.) In a footnote, Plaintiffs assert that "[t]he parties to this action have been served with the Verified Amended Complaint (D.E. 18), as well as the Motion for a Preliminary Injunction[,] (D.E. 19)." (Id. at 2 n.1.) However, to that point, Plaintiffs had not filed proof of service, and neither the U.S. Attorney nor any of the Defendants had entered an appearance. (See D.E. 25.) Therefore, on December 8, 2021, the Court issued an Order Denying Without Prejudice Plaintiffs’ Motion to Expedite Proceedings. (Id. )

On December 8, 2021, Plaintiffs filed an Amended Motion to Expedite Proceedings. (D.E. 26.) Plaintiffs attached to their Motion Returns of Service stating that each Defendant, except Director Ahuja, had been served with Summons in a Civil Action and Plaintiffs’ Amended Verified Complaint for a Preliminary Injunction (and the Exhibits attached thereto). (D.E. 26-1 – 26-7.) The Returns of Service for Attorney General Garland, (D.E. 26-1), President Biden, (D.E. 26-2), and Co-Chair Zients, (D.E. 26-3) state that process was mailed to them via United States Postal Service Certified Mail on November 17, 2021; however, Plaintiffs did not attach a certificate verifying when (if at all) the process was delivered to these Defendants. The Return of Service for Warden Carlton states...