Church v. Biden

• Decision Date: 08 November 2021
• Docket Number: Civil Action No. 21-2815 (CKK)
• Parties: Steven CHURCH, et al., Plaintiffs, v. Joseph R. BIDEN, in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — District of Columbia

573 F.Supp.3d 118

Steven CHURCH, et al., Plaintiffs,

v.Joseph R. BIDEN, in his official capacity as President of the United States, et al., Defendants.

Civil Action No. 21-2815 (CKK)

United States District Court, District of Columbia.

Signed November 8, 2021

Michael Alan Yoder, The Law Office of Michael A. Yoder, PLLC, Arlington, VA, for Plaintiffs.

Andrew Evan Carmichael, Steven A. Myers, United States Department of Justice, Civil Division, Washington, DC, Stuart Justin Robinson, U.S. Department of Justice, Civil Division, San Francisco, CA, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

The plaintiffs in this case include eighteen federal civilian employees¹ and two active-duty Marines² (collectively, "Plaintiffs"). By virtue of their federal civilian and military employment, Plaintiffs are subject to the recent COVID-19 vaccine mandates imposed under President Joseph R. Biden's Executive Order 14043 and Secretary of Defense Lloyd Austin's August 24, 2021 order for the vaccination

of military personnel. Plaintiffs now challenge these vaccine mandates on constitutional and statutory grounds and request emergency injunctive relief preventing their enforcement.

Plaintiffs' "extraordinary" request for immediate injunctive relief is not merited. At this early stage of the proceedings, the record reflects that each Plaintiff has requested an exemption to the very COVID-19 vaccine mandates they challenge. These exemption requests all remain pending, and during their pendency, no Plaintiff faces disciplinary action for refusing the COVID-19 vaccine. Plaintiffs, therefore, come before this Court complaining of a compulsory inoculation they may never need to take, and of adverse employment actions they may never experience. This uncertainty weighs decisively against the ripeness of Plaintiffs' claims and the irreparability of their purported injuries. Emergency injunctive relief is not appropriate under these circumstances. Accordingly, upon consideration of the pleadings, the relevant legal authorities, and the record as a whole,³ the Court DENIES Plaintiffs' [5] Emergency Application for a Temporary Restraining Order and Motion for Preliminary Injunction.

I. BACKGROUND

A. COVID-19 Pandemic & Vaccine Development

Coronavirus disease ("COVID-19") is an infectious disease caused by the SARS-CoV-2 virus.⁴ Spread principally by "exposure to respiratory fluids," the "initial presentation of a [COVID-19] infection ranges from no symptoms at all (asymptomatic) to severe illness and death; and even after recovery, various long-term health problems may linger." Klaassen v. Trustees of Ind. Univ. , 549 F. Supp. 3d 836, 843–44 (N.D. Ind. July 18, 2021) (internal citations omitted); see Defs.' Opp'n Ex. 9, Decl. of Colonel Tonya Rans ("Rans Decl.") ¶ 7, ECF No. 13-9.⁵ Because the virus causing COVID-19 can "be easily transmitted to others prior to symptom development," it can "infect significant numbers before being identified." Rans Decl. ¶ 9. In recent months, a mutation of the SARS-CoV-2 virus known as the "Delta" variant has become the dominant strain of the virus; it is twice as contagious as previous variants. Id. ¶ 5.⁶ To date, approximately 46 million cases of COVID-19 have been reported in the United States; the disease has claimed the lives of more than 751,000 Americans.⁷

As another federal district court summarized, "COVID-19 caught the world unaware. Initially, there were no vaccines or treatments[.]" Klaassen , 549 F.Supp.3d at 850–51. Shortly after then-President Donald J. Trump declared a national emergency on March 13, 2020, see 85 Fed. Reg. 15,337 (Mar. 13, 2020), the Secretary of the U.S. Department of Health and Human Services ("HHS") determined that "circumstances exist justifying the authorization of emergency use of drugs and biological products during the COVID-19 pandemic," see 85 Fed. Reg. 18,250, 18,250 –51 (Apr. 1, 2020). In such circumstances, the U.S. Food and Drug Administration ("FDA") may issue an "emergency use authorization" ("EUA") for FDA-regulated products "intended for use" in responding to the emergency, before such products receive FDA "approval." See 21 U.S.C. § 360bbb-3(a)(1). In October 2020, the FDA issued guidance to vaccine developers, "outlining [the FDA's] expectations for vaccine sponsors," including the "scientific data and information" that would be required to obtain an EUA.⁸

In late 2020 and early 2021, the FDA issued EUAs for COVID-19 vaccines developed by three companies—Pfizer BioNTech, Moderna, and Johnson & Johnson.⁹ On August 23, 2021, the FDA approved the vaccine created by Pfizer BioNTech, which would be marketed as "Comirnaty," for "the prevention of COVID-19 disease in individuals 16 years of age and older."¹⁰

B. Vaccine Mandates

1. Federal Employee Vaccine Mandate

On September 9, 2021, President Joseph R. Biden issued Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. See Exec. Order 14043, 86 Fed. Reg. 50,989 (Sept. 9, 2021) (hereinafter " Executive Order 14043" or "Federal Employee Vaccine Mandate"). Noting that the "Delta variant" of COVID-19 is "highly contagious and has led to a rapid rise in cases and hospitalizations," and that "COVID-19 vaccines are widely available in the United States," Executive Order 14043 concludes that it is "essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public. The [Centers for Disease Control ("CDC")] has found that the best way to do so is to be vaccinated." Id. § 1. Accordingly, "[e]ach agency" is instructed to "implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination

for all of its Federal employees, with exceptions only as required by law." Id. § 2.

Executive Order 14043 also directs the Safer Federal Workforce Task Force ("Task Force")¹¹ to "issue guidance within 7 days ... on agency implementation of this requirement for all agencies covered by this order." Id. The resulting guidance directs that "[f]ederal employees need to be fully vaccinated by November 22, 2021." See Safer Federal Workforce, FAQs, Vaccinations, https://perma.cc/YH2Z-CMDJ ("Task Force Vaccine Guidance"). Federal employees are "considered fully vaccinated for COVID-19 2 weeks after they have received the requisite number of doses of a COVID-19 vaccine," meaning that federal employees must receive their "last dose of the vaccine by no later than November 8, 2021 to meet the November 22, 2021 deadline to be fully vaccinated."¹² Id. (emphasis added). Employees who fail to comply with this deadline and "have neither received an exception nor have an exception request under consideration" are "subject to discipline, up to and including termination or removal." Id.

The Task Force Vaccine Guidance recognizes that certain federal employees may be eligible for an exception to the vaccine requirement in "limited circumstances" in which "the law requires an exception":

[A]n agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee's job responsibilities; and the reasonably foreseeable effects on the agency's operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations.

Task Force Vaccine Guidance. As of October 29, 2021, the Guidance provides a "template" for employees to submit a request for a religious exception to the vaccine requirement, but notes that agencies may ask for "additional information" to determine whether the employee is entitled to any accommodation.¹³ The Guidance directs agencies to set a date by which employees can request exceptions, but also allows employees to "submit requests for an exception after the date established by the agency." Id. Defendants note that an employee "who requests an exception will not be subject to discipline while the request is under consideration." Defs.' Opp'n at 5; see Task Force Vaccine Guidance ("Agencies may initiate the enforcement process as soon as November 9, 2021, for employees who fail to submit documentation to show that they have completed receiving required vaccination

dose(s) by November 8, as long as those employees have not received an exception and the agency is not considering an exception request from the employee." (emphasis added)). If an employee's request for a religious exception is denied, then the employee must receive "their first (or, if a one-dose series, only), dose within two weeks of the final determination to deny the accommodation." Task Force Vaccine Guidance.

2. Department of Defense ("DoD") Vaccine Mandate

Emphasizing the need for a "healthy and ready force" to "defend this Nation," Secretary of Defense Lloyd Austin announced on August 9, 2021 that COVID-19 vaccines would be added to the list of mandatory vaccines required for all service members "by no later than mid-September, or immediately upon [FDA] licensure, whichever comes first."¹⁴ Mem. for Dep't of Def. Employees (Aug. 9, 2021), https://perma.cc/H5G8-T62L.

After the FDA announced its approval of Pfizer BioNTech's COVID-19 vaccine on August 23, 2021,¹⁵ Secretary Austin directed the "Secretaries of the Military Departments to immediately begin full vaccination

of all members of the Armed Forces under DoD authority or on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19." Mem....