Antunes v. Rector & Visitors of Univ. of Va.
| Docket Number | Case No. 3:21-CV-00042 |
| Decision Date | 12 September 2022 |
| Citation | 627 F.Supp.3d 553 |
| Parties | Catherine ANTUNES, Plaintiff, v. RECTOR & VISITORS OF the UNIV. OF VA., et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
Edward Scott Lloyd, Law Office of E. Scott Lloyd, PLLC, Front Royal, VA, for Plaintiff.
Oliver McDonald, Scott P. Kennedy, DOJ-Civ, Consumer Protection Branch, Washington, DC, for Defendants Xavier Becerra, The U.S. Department of Health and Human Services, The Food and Drug Administration, Robert Califf, M.D.
Bret Gregory Daniel, Elizabeth Marie Ebanks, Ogeltree, Deakins, Nash, Smoak & Stewart, P.C., Richmond, VA, for Defendant Rector and Visitors of the University of Virginia.
Plaintiff began working as a nurse at the University of Virginia ("UVA") in 2020. According to Plaintiff's Third Amended Complaint, in late 2021, the University required health-care employees to provide proof of vaccination for COVID-19. When Plaintiff failed to provide proof of vaccination and had not submitted a request for a religious or medical exception, the University suspended her and later terminated her employment. Plaintiff filed suit against the Federal Food and Drug Administration ("FDA") and the Department of Health and Human Services ("HHS") and their officials, and UVA, alleging violations of her constitutional rights and wrongful termination of employment.
Plaintiff's suit will be dismissed in its entirety. Plaintiff's claims against Federal Defendants will be dismissed for lack of standing. Plaintiff's claims against the UVA Defendants will be dismissed for failure to state a claim.
The following facts are alleged in Plaintiff's Third Amended Complaint and assumed true for purposes of resolving this motion. See King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016) (). Plaintiff Catherine Antunes, a nurse with thirteen years of experience in healthcare and six years of experience as a nurse, began employment within the UVA healthcare system in January 2020. Dkt. 40 ( ) ¶¶ 1, 10, 30. At her most recent evaluation (6/30/2021), UVA Health management rated her work as "fully meets expectations," in addition to describing her as "an exceptional asset to the team" who possesses "astute clinical skills" and "natural leadership ability." Id. ¶ 1.
On March 27, 2020, then-Secretary of the U.S. Department of Health and Human Services ("HHS") Alex Azar II issued a declaration (Declaration that Circumstances Exist Justifying Authorizations Pursuant to Section 564 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3). Id. ¶ 24. This declaration stated that, on February 4, 2020, Secretary Azar determined, in relation to the novel coronavirus, that "[p]ursuant to section 564 of the Federal Food, Drug, and Cosmetic (FD&C) Act there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of United States citizens living abroad." Id. Pursuant to Secretary Azar's March 27 declaration, on December 11, 2020, the U.S. Food and Drug Administration (FDA) issued an Emergency Use Authorization (EUA) for the "BioNTech" vaccine manufactured by pharmaceutical company Pfizer to prevent COVID-19's spread. Id. ¶ 26. The FDA similarly issued an EUA for Moderna's vaccine on December 18, 2020, id. ¶ 27, and Janssen (Johnson and Johnson)'s vaccine on February 27, 2021. Id. ¶ 28.
On August 23, 2021, the FDA fully approved Pfizer's vaccine ("Comirnaty"), additionally noting Comirnaty as "legally distinct" with "certain differences" from Pfizer's BioNTech vaccine. Id. ¶¶ 33-34; id. (Ex. G). At the time in which Plaintiff filed her Third Amended Complaint, Spikevax (manufactured by Moderna), was the only other vaccine that received full approval from the FDA, which it received January 31, 2022. Id. ¶ 42.
On August 25, 2021, UVA executives, via an organization-wide email, announced: "[W]e . . . will now require all team members without a religious or medical exemption to be vaccinated against COVID-19 by November 1, 2021," going on to say, "[a]ny team member not meeting the vaccination requirement deadline will be subject to disciplinary action up to and including termination." Id. ¶ 36; id. (Ex. H). In September 2021, UVA expressed a belief that the legality of this mandate was "unclear." Id. ¶ 37, id. (Ex. I).
Following Comirnaty's full approval by the FDA, Plaintiff Antunes, on August 29, 2021, began emailing an account set up by UVA to field COVID-19 vaccine-related questions. Id. ¶ 37. In this email exchange, the account administrator "informed Ms. Antunes that UVA was not offering the vaccine that had received full FDA approval, 'Comirnaty,' to its employees because it was not available to UVA, and that UVA would make the Comirnaty available to them when they were able to acquire it." Id. ¶ 38; id. (Ex. J).
Plaintiff Antunes, at the time in which she filed her Third Amended Complaint, had not received any COVID-19 vaccines and had no plans to receive any vaccines, though she has no categorical objection to vaccines. Id. ¶¶ 44-45. On November 1, 2021, UVA informed Plaintiff Antunes that, beginning on November 2, 2021, UVA Health would suspend her for a five-day period, pending verification that she received a COVID-19 vaccine. Id. ¶ 47. On November 9, 2021, UVA terminated Plaintiff's employment. Id. ¶ 48. Unlike Plaintiff, many with religious and/or medical exemptions to UVA Health's vaccine mandate continue to work at UVA Health. Id. ¶¶ 49-50.
When a party attacks the subject matter jurisdiction of the Court under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court generally must first determine that it has jurisdiction as a threshold matter. Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431-32, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). Where, as here, a defendant challenges the sufficiency of a plaintiff's allegations to establish subject matter jurisdiction, the court must accept the truth of the plaintiff's allegations at this stage, but still, it is the plaintiff's burden to establish that the allegations are sufficient to support subject matter jurisdiction. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Second, to survive a Rule 12(b)(6) motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The purpose of a Rule 12(b)(6) motion is to "test the sufficiency of a complaint," not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King, 825 F.3d at 214 (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). "Thus, when considering a motion to dismiss, a court must consider the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Bing v. Brivo Systems, LLC, 959 F.3d 605, 616 (4th Cir. 2020). Nevertheless, only facts can render a claim for relief plausible. "[F]ormulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Nor is it sufficient for a plaintiff to plead facts merely consistent with liability. The plaintiff must plead enough factual content to nudge a claim across the border from mere possibility to plausibility. Id. at 570, 127 S.Ct. 1955. See also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Plaintiff alleges that Federal Defendants1 violated the Food, Drug, and Cosmetic Act ("FDCA") and the Equal Protection Clause, Third Amend. Compl. ¶¶ 51-59, 63-65, 67-68, and she seeks a declaration holding Federal Defendants' challenged conduct unlawful, id. p. 16. She asserts that Federal Defendants violated the FDCA by (1) failing to indicate that the COVID-19 pandemic, which HHS declared a public emergency, "involved a biological, chemical, radiological, or nuclear agent or agents or a disease or condition that may be attributable to such agent or agents," id. ¶¶ 51-54, and (2) failing to ensure vaccine distribution according to the FDCA's "required conditions section," id. ¶¶ 55-59. She asserts that Federal Defendants violated the Equal Protection Clause due to the HHS setting up a discriminatory framework for COVID-19 vaccine distribution, id. ¶¶ 63-65, 67-68. Plaintiff lacks standing to bring such claims against Federal Defendants.
Standing is a threshold jurisdictional injury, and to establish standing, a plaintiff must demonstrate that she has "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that it is likely to be redressed by a favorable decision." Spokeo v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). Further, a plaintiff must establish standing "for each claim" and "each form of relief," the plaintiff seeks. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).
Traceability requires "a causal connection between the injury and the conduct complained of - the injury has to be 'fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party.' " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Various courts have held...
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