Guettlein v. U.S. Merch. Marine Acad.
| Decision Date | 20 December 2021 |
| Docket Number | 21-CV-6443 (JMA) (JMW) |
| Citation | 577 F.Supp.3d 96 |
| Parties | John GUETTLEIN, Joshua Gardener, Alena Dunaway, Clarissa Reckline, William Tetrev, and Brent LeBlanc, individually, and for all others similarly situated, Plaintiffs, v. UNITED STATES MERCHANT MARINE ACADEMY, Joachim Buono, individually and as Superintendent of the United States Merchant Marine Academy, the United States Maritime Administration, and the United States Department of Transportation, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Louis M Gelormino, Mark J. Fonte, F&G Legal Group, 2550 Victory Boulevard, Staten Island, NY 10314, Attorneys for Plaintiffs.
Breon Peace, United States Attorney, James H. Knapp, Assistant United States Attorneys, Eastern District of New York, 610 Federal Plaza, Central Islip, NY 11722, Attorneys for Defendants.
On November 19, 2021, Plaintiffs John Guettlein, Joshua Gardner, Alena Dunaway, Clarissa Reckline, William Tetrev, and Brent LeBlanc, individually, and purportedly for all others similarly situated, (collectively "Plaintiffs") commenced this action against defendants United States Merchant Marine Academy ("USMMA" or "Academy"), Joachim Buono1 , individually and as Superintendent of the United States Merchant Marine Academy, the Maritime Administration ("MARAD") and the United States Department of Transportation ("DOT") (collectively, "Defendants"). Plaintiffs allege violations of their substantive due process rights challenging the Academy's COVID-19 vaccine mandate ("Academy Mandate"), the Department of Defense's mandate ("DOD Mandate"), and the Navy's mandate ("Navy Mandate") (collectively, the Vaccine Mandates). (ECF No. 1, Complaint ("Compl.).) Plaintiffs also filed an application for an order to show cause why a preliminary injunction and temporary restraining order ("TRO") to enjoin Defendants from enforcing the COVID-19 vaccine mandate should not be issued. (ECF No. 2.) The Court issued an order directing Defendants to respond to Plaintiffs’ motion for a preliminary injunction and TRO. (Electronic Order, 11/19/2021.) On December 3, 2021, Defendants responded, opposing the motion for a preliminary injunction and TRO and arguing that the action should be dismissed. (ECF No. 8, ("Gov't Opp.).) Plaintiffs have not filed any reply.
For the following reasons, the Court DENIES Plaintiffs’ request for a preliminary injunction or TRO.
Plaintiffs are six students enrolled at the Academy—four Midshipmen (upper class students) and two Plebes (first year students).
(Compl. ¶¶ 1, 18-23.) The Academy is a federal service academy whose graduates are committed to serve the national security, marine transportation, and economic needs of the United States as licensed Merchant Marine Officers and commissioned officers in the Armed Forces. (Compl. ¶ 28.) In times of war or national emergency, U.S. Merchant Mariners operate as an auxiliary unit of the Navy. (Compl. ¶ 31.)
Plaintiffs challenge the Academy's Superintendent Notice 2021-08—the Academy Mandate—that was issued on October 20, 2021. (Compl. ¶¶ 1, 35, ECF No. 2-4.) The Academy Mandate was issued following the DOD Mandate issued on August 24, 2021 and the Navy Mandate issued on September 20, 2021. (Compl. ¶¶ 1, 33; ECF No. 2-3; ECF No. 12 at 11.) Plaintiffs bring a substantive due process claim arguing that the Academy Mandate would deprive them of the liberty interest of the "right to pursue a profession". (Compl. ¶ 11.) Plaintiffs allege that they are bringing their claim pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343. (Compl. ¶¶ 14-16.) Plaintiffs specifically take issue with that fact that the Academy Mandate "includes no provision to opt-out of the mandate through mask wearing, temperature checks, weekly testing with FDA-approved tests, or if students have already developed antibodies following exposure to a Covid-19 infection." (Compl. ¶ 2.)
On August 24, 2021, after the FDA announced full approval of the Pfizer COVID-19 vaccine, Secretary of Defense Lloyd Austin directed the Secretaries of the Military Departments to immediately begin full vaccination
of all members of the Armed Forces under DOD authority, on active duty or in the Ready Reserve who were not fully vaccinated against COVID-19. (See ECF No. 12 at 11, Declaration of Mikel E. Stroud, Exhibit A2 .)
On August 31, 2021, the Secretary of the Navy issued a directive stating that all Navy service members must be fully vaccinated unless they have an approved medical or religious exemption or are actively participating in COVID-19 clinical trials. (ECF No. 2-3, Plaintiffs’ Exhibit A.) Navy service members include active service members, service members in the selected reserve, and service members in the Individual Ready Reserve. (Id. ) The directive states that for Navy service members who do not get vaccinated:
their ultimate disposition will be determined by the designated COVID Consolidated Disposition Authority (CCDA). The CCDA will serve as the central authority for adjudication and will have at his or her disposal the full range of administrative and disciplinary actions. Until further notice, authority is withheld for initiating non-judicial punishment, courts-martial, or administrative separation in cases of Navy Service Members refusing the vaccine.
(Id. )
On October 20, 2021, Defendant Buono issued the Academy Mandate. (ECF No. 2-4, Plaintiffs’ Exhibit B.) The Academy Mandate requires all Midshipmen and Plebes at the Academy to be fully vaccinated against COVID-19 by December 28, 2021 or to request an exemption. (Id. at 1.) The Academy Mandate requires Midshipmen and Plebes to submit vaccine documentation to the Office of Health Services or to submit an exemption request by December 14, 2021. (Id. ) It notes that: "the Department of Defense mandated that all active duty, reserve (active and inactive), and ROTC personnel obtain this vaccination
; the requirement is applicable to all USMMA cadets who have been appointed Midshipmen in the Individual Ready Reserve (IRR), that is, all U.S.-citizen USMMA cadets." (Id. )
The Academy Mandate includes instructions on how to request an exemption from the policy:
For Midshipmen or Plebes who intend to request exemption from this policy on medical grounds or because of a sincerely held religious belief, practice, or observance, please email CDR McCarthy, Deputy Commandant, at mccarthya@usmma.edu to advise of your intent to do so as soon as possible but no later than December 14, 2021. Information on how to submit a formal exemption request will be forthcoming.
(Id. ) The Academy Mandate outlines certain requirements for unvaccinated and exempted students:
Unvaccinated Midshipmen and Plebes, including those who advise CDR McCarthy of their intention to submit a request for exemption as set forth above will continue to be subject to mandatory weekly testing administered by the Academy. They may also be excluded from all in-person classes, communal areas, and activities in the Academy's discretion. All Midshipmen and Plebes, whether vaccinated or not, will also be required to continue to adhere to the Academy's health and safety protocols, which may include social distancing, mask-wearing, and additional surveillance testing, among others.
(Id. at 2.) It also states the possible consequences of failing to obtain vaccination
or notify of an intent to seek an exemption: "[f]ailure to obtain the vaccination, or, alternatively, to notify CDR McCarthy of an intent to seek an exemption by the respective due dates, is a violation of the Midshipman Regulations, and may result in discipline, up to and including disenrollment." (Id. )
"When, as here, a preliminary injunction ‘will affect government action taken in the public interest pursuant to a statute or regulatory scheme,’ the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction." Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016) (quoting Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) ) (citations and internal quotation marks omitted). See also Maniscalco v. New York City Dep't of Educ., No. 21-CV-5055, 563 F.Supp.3d 33, 40–41 (E.D.N.Y. Sept. 23, 2021), aff'd, No. 21-2343, 2021 WL 4814767 (2d Cir. Oct. 15, 2021) (); Church v. Biden, No. 21-CV-2815, 2021 WL 5179215 (D.D.C. Nov. 8, 2021) (). "In this Circuit, the standard for entry of a temporary restraining order is the same as for a preliminary injunction." 1077 Madison St., LLC v. Mar., No. 14-CV-4253, 2017 WL 6387616, at *2 (E.D.N.Y. Aug. 22, 2017), aff'd sub nom. 1077 Madison St., LLC v. Daniels, 954 F.3d 460 (2d Cir. 2020) ; see also Andre-Rodney v. Hochul, No. 21-CV-1053, 569 F.Supp.3d 128, 133–34 (N.D.N.Y. Nov. 1, 2021) (same).
"In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm." Maniscalco, 563 F.Supp.3d at 37 (quoting Ferreyra v. Decker, 456 F. Supp. 3d 538, 549 (S.D.N.Y. 2020) ). Whereas here Plaintiffs "allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary." Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999). Therefore, the Court will focus its analysis the other requirements.
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