Griner v. Biden
| Decision Date | 13 October 2022 |
| Docket Number | CIVIL 2:22CV149 DAK-DBP |
| Parties | DEVAN GRINER, M.D., Plaintiff, v. JOSEPH R. BIDEN, JR., in his official capacity as President of the United States of America; THE UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; XAVIER BECERRA in his official capacity as Secretary of the United States Department of Health and Human Services; CENTERS FOR MEDICARE AND MEDICAID SERVICES; CHIQUITA BROOKS-LASURE in her official capacity as Administrator for the Centers for Medicare and Medicaid Services; MEENA SESHAMANI in her official capacity as Deputy Administrator and Director of Center for Medicare; and DANIEL TSAI in his official capacity as Deputy Administrator and Director of Center for Medicaid and CHIP Services; Defendants. |
| Court | U.S. District Court — District of Utah |
This matter is before the court on Plaintiff Devan Griner M.D.'s Motion for Preliminary Injunction and on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Failure to State a Claim. On July 6 2022, due to the COVID-19 pandemic, the court held a hearing on the motion via Zoom videoconferencing. At the hearing George R. Wentz, Jr. represented Plaintiff Devan Griner, M.D., and Joel L. McElvain represented Defendants. The court took the motions under advisement. After carefully considering the memoranda[1] filed by the parties and the law and facts relevant to the pending motions, the court issues the following Memorandum Decision and Order. For the reasons explained below, the court grants Defendants' Motion to Dismiss and denies Plaintiff's Motion for Preliminary Injunction.
COVID-19 has “overtaken the 1918 influenza pandemic as the deadliest disease in American history.” Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed.Reg. 61,555, 61,556 (Nov. 5, 2021). By the time the rule at issue here was issued in November 2021, SARSCoV-2, the virus that causes COVID-19, had infected over 44 million people, hospitalized more than 3 million people, and claimed more than 720,000 lives in the United States. Those numbers have only grown since that time. The virus can easily pass from person to person at health care facilities. As a result, the pandemic has been devastating for healthcare facilities and patients alike. Fortunately, the vaccines now approved or authorized to protect against COVID-19 are safe and highly effective.
The Secretary of Health and Human Services reviewed this evidence and concluded that action was urgently needed to protect patients from infection with the virus while they receive care in facilities funded by Medicare and Medicaid. Congress has assigned the Secretary a statutory responsibility to ensure that the health and safety of patients are protected in these federally funded facilities. To do so, he issued a rule, the Center for Medicare and Medicaid Services' (“CMS”) Interim Final Rule (hereinafter referred to as the “CMS Rule,” “Vaccination Rule,” or the “Rule”), requiring certain health care facilities, as a condition of their participation in these programs, to ensure that those members of their healthcare staff who interact with patients, or who have contact with other staff who do so, receive vaccination for COVID-19, absent an exemption.
The Secretary calculated that the implementation of the CMS Rule would save hundreds, and possibly thousands, of lives each month. After two District Courts enjoined enforcement of the Rule, the Government asked the United States Supreme Court to stay the injunctions. The Court reviewed the CMS Rule on an expedited basis, and on January 13, 2022, it stayed the lower courts' injunctions. The Court held that the Secretary had statutory authority to issue the Rule and that the record supported his finding that the CMS Rule was needed to prevent the transmission of the virus that causes COVID-19 within federally funded healthcare facilities. Biden v. Missouri, 142 S.Ct. 647 (2022) (per curiam).[2] The Court recognized that “perhaps the most basic” function that the Secretary of Health and Human Services performs “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients' health and safety.” Id. at 650.
In exercising this function, the Secretary found “that vaccination of healthcare workers against COVID-19 was ‘necessary for the health and safety of individuals to whom care and services are furnished.'” Id. at 651 (quoting 86 Fed.Reg. 61,555, 61,561 (Nov. 5, 2021)). “That determination was based on data showing that the COVID-19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated.” Id. (citing 86 Fed.Reg. at 61,558-61,561, 61,56761,568, 61,585-61,586). The Secretary “also explained that, because Medicare and Medicaid patients are often elderly, disabled, or otherwise in poor health, transmission of COVID-19 to such patients is particularly dangerous.” Id.
The CMS Rule initially contemplated that all relevant staff would receive the first dose of a two-dose COVID-19 vaccine or a single-dose COVID-19 vaccine or have been granted an exemption under the facility's exemption policies, by December 6, 2021 (“Phase 1”). The Rule also contemplated that by January 4, 2022, non-exempt staff who are covered by the Rule would be fully vaccinated (“Phase 2”). In light of additional litigation, the Secretary later exercised his enforcement discretion to modify the timeline for compliance for healthcare facilities in certain states, including Utah, resulting in a February 14, 2022, deadline for Phase 1, and a March 15, 2022, deadline for Phase 2.
On March 4, 2022, Dr. Griner filed the instant action, challenging the validity and the constitutionality of the CMS Rule. Dr. Griner is double board-certified in General Surgery and Plastic Surgery, and he is fellowship-trained in Pediatric Plastic and Craniofacial Surgery. He has admitting privileges at four Utah hospitals, all of which receive federal funding under the Medicare and Medicaid programs. He alleges that the CMS Rule unconstitutionally infringes on his fundamental right to refuse medical treatment. More specifically, he claims that the “Compulsory Injections,” as he calls them, required by the CMS Rule are not “vaccines,” as that term is traditionally understood, because they do not confer immunity to SARS-CoV-2 and do not prevent infection from or transmission of the virus. Instead, he claims, the injections were designed only to lessen the severity of symptomatic disease in the recipient, rendering them “medical treatments” that Dr. Griner claims he has a fundamental right to refuse.
Specifically, he asserts in his Complaint that the CMS Rule (1) violates his substantive due process right to “decisional privacy with regard to medical treatment” under the Fifth and Fourteenth Amendments to the Constitution; (2) deprives him of the equal protection of the laws under the Fifth and Fourteenth Amendments by treating vaccinated and unvaccinated health care practitioners differently, (3) and is ultra vires because the Defendants' actions in issuing the CMS Rule violate the Constitution of the United States in that they invade and encroach upon sovereign powers that reside solely in the States and have never been relinquished by the States to the Federal Government.
On April 1, 2022, Dr. Griner filed a Motion for a Preliminary Injunction based on the first count of his Complaint, alleging that COVID-19 vaccines are not effective in preventing transmission of the virus, that the injections are not actually vaccines but are medical treatments, and that the CMS Rule violates his fundamental right to refuse medical treatment under the substantive due process clause of the Fifth and Fourteenth Amendments.
Soon thereafter, Defendants filed a Motion to Dismiss. First, they argue, Dr. Griner lacks standing because he does not allege that any hospital has taken any action against him under any policies they have developed under the CMS Rule. For similar reasons, Defendants argue that Dr. Griner's claim is not ripe for judicial review. Because of these failings, Defendants assert that this court cannot exercise jurisdiction over Dr. Griner's action.
Moreover, Defendants argue, even if this court could exercise jurisdiction over Dr. Griner's action, his claims lack merit and should be dismissed for failure to state a claim. Specifically, they maintain that Dr. Griner's due process claim is without merit, given the century-old precedent of Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that there is no due process right to refuse vaccinations, even where (unlike here) the government imposes a vaccination requirement on the general population under threat of criminal sanctions. Defendants also contend that Dr. Griner's equal protection claim is meritless, as the distinction between vaccinated and unvaccinated healthcare practitioners does not create a suspect classification, and the Secretary certainly had a rational basis to conclude that vaccinations of healthcare staff would control the spread of a deadly virus. Finally, Defendants argue that Dr. Griner's Tenth Amendment claim is likewise foreclosed by Supreme Court case law upholding Congress's Spending Clause power to condition federal funds on terms that promote the general welfare. Accordingly, Defendants argue, Dr. Griner's Complaint should be dismissed for failure to state a claim.
Defendants move to dismiss this action...
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