McCray v. Biden
| Decision Date | 07 December 2021 |
| Docket Number | Civil Action No. 21-2882 (RDM) |
| Citation | 574 F.Supp.3d 1 |
| Parties | Ronald C. MCCRAY, Jr., Plaintiff, v. Joseph R. BIDEN, Jr., Defendant. |
| Court | U.S. District Court — District of Columbia |
Ronald C. McCray, Jr., Alexandria, VA, Pro Se.
Stephen DeGenaro, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
Plaintiff Ronald McCray, Jr., who is proceeding pro se , seeks to enjoin the enforcement of two presidential executive orders—Executive Order 14,042 and Executive Order 14,043 —which, respectively, direct federal agencies to require COVID-19 vaccination for federal contractors and employees. Before the Court is Plaintiff's motion for a temporary restraining order ("TRO") against the President, Dkt. 2.
Plaintiff maintains that "COVID-19 statistics are meaningless as they are based [on] false representations of material facts" and so, he claims, "there is no COVID-19 emergency as portrayed by CDC and WHO." Dkt. 9 at 4. Plaintiff's complaint and his motion for a TRO challenge the President's Executive Orders on four grounds: first, that the orders are "invalid" because, he claims, the "declaration of [a] public health emergency" for COVID-19 was "fraudulent," Dkt. 1 at 115 (Compl. ¶ 114), and violated the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3(b), Dkt. 1 at 113 (Compl. ¶¶ 109–11); second, that the orders violate substantive due process by burdening Plaintiff's fundamental rights to privacy and bodily integrity, Dkt. 1 at 115–23 (Compl. ¶¶ 115–37); third, that the orders infringe upon Plaintiff's equal protection rights because the orders treat individuals with natural immunity differently from individuals with vaccine-induced immunity, id. at 123–26 (Compl. ¶¶ 138–46); and fourth, that the orders are "arbitrary, unlawful, contrary to constitutional rights, unsupported by substantial evidence, and without observance of procedure," in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2), Dkt. 1 at 126–27 (Compl. ¶¶ 146–53).
For the reasons set forth below, the Court concludes that it lacks subject-matter jurisdiction over this dispute because it has no power to enjoin the President and because Plaintiff's claims are not yet ripe for adjudication. Accordingly, the Court will DENY Plaintiff's motion for a TRO, Dkt. 2, and will DISMISS Plaintiff's complaint, Dkt. 1, without prejudice.
COVID-19 is an infectious respiratory disease caused by the SARS-CoV-2 novel coronavirus. Coronavirus disease (COVID-19) , World Health Org., https://www.who.int/health-topics/coronavirus#tab=tab_1 (last visited Dec. 7, 2021). Since early 2020, the COVID-19 pandemic has resulted in widespread disruption, upheaval, and tragedy across the country and the globe. To date, more than 49 million Americans have contracted the virus, causing more than 3.4 million hospitalizations and 785,000 deaths. See COVID Data Tracker , Cts. for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker (last visited Dec. 7, 2021). The pandemic, moreover, has persisted over time; despite being more than a year and a half into the crisis, in the past week, the United States reported over 726,000 new cases of COVID-19. Id.
The emergence of COVID-19 led the Secretary of Health and Human Services to declare a public health emergency under 42 U.S.C. § 247d(a) in January 2020 and the President to declare a national emergency in March 2020. See Declaring a National Emergency Concerning the Novel Coronavirus (COVID-19) Outbreak, Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020).
Shortly after the inception of the pandemic, scientists began a concerted effort to develop an effective vaccine to combat the virus. Generally, before a vaccine may be distributed to the public, the Food and Drug Administration ("FDA") must review and approve the product as safe and effective. See 42 U.S.C. § 262(a)(2)(C) ; 21 C.F.R. § 600.3(s). A notable exception to this approval process, however, comes in the form of "emergency use authorization." Under the Food, Drug, and Cosmetic Act, the FDA may grant "emergency use authorization" to a medical product, such as a vaccine, which permits the product to be distributed to the public during a public health emergency, for the purpose of combatting that emergency, before the product has received final approval from the FDA. 21 U.S.C. § 360bbb-3.
In March 2020, the Secretary of Health and Human Services determined that "circumstances exist justifying the authorization of emergency use of drugs and biological products during the COVID-19 pandemic." Emergency Use Authorization Declaration, 85 Fed. Reg. 18250, 18250 (Apr. 1, 2020). Based on this declaration, the FDA later issued emergency use authorizations for three vaccines: the Pfizer-BioNTech and Moderna vaccines in December 2020, and the Janssen vaccine in February 2021. See Press Release, Food & Drug Admin., FDA Takes Key Action in Fight Against COVID-19 By Issuing Emergency Use Authorization for First COVID-19 Vaccine (Dec. 11, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19; Press Release, Food & Drug Admin., FDA Takes Additional Action in Fight Against COVID-19 By Issuing Emergency Use Authorization for Second COVID-19 Vaccine (Dec. 18, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-additional-action-fight-against-covid-19-issuing-emergency-use-authorization-second-covid; Press Release, Food & Drug Admin., FDA Issues Emergency Use Authorization for Third COVID-19 Vaccine (Feb. 27, 2021), https://www.fda.gov/news-events/press-announcements/fda-issues-emergency-use-authorization-third-covid-19-vaccine. On August 23, 2021, the FDA gave full approval to the Pfizer-BioNTech COVID-19 vaccine for people aged 16 years and older. Press Release, Food & Drug Admin., FDA Approves First COVID-19 Vaccine (Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine.
86 Fed. Reg. 50985.1 Under the terms of the President's Executive Order, the mandate applies only to new contracts and extensions, renewals, and exercises of options on existing contracts, although agencies are "strongly encouraged, to the extent permitted by law," to ensure that the safety protocols required under "all existing contracts" are "consistent with the requirements specified in ... th[e] order." Id. at 50987.
On September 24, 2021, the Safer Federal Workforce Task Force (the "Task Force") issued guidance that all "covered contractor employees" obtain "COVID-19 vaccination ..., except in limited circumstances where an employee is legally entitled to an accommodation." Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors on COVID-19 Workplace Safety 1 (updated Nov. 10, 2021) ("Federal Contractor Guidance"); see 86 Fed. Reg. 53691 (Sept. 28, 2021) (OMB Director approval). The guidance defines a "covered contractor employee" as "any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace." Federal Contractor Guidance, supra , at 3. As of the most up-to-date guidance, covered contractor employees "must be fully vaccinated no later than January 18, 2022." Id. at 5.
Each federal contractor is responsible for ensuring that its employees comply with the Task Force's workplace safety protocols and must review its covered employees’ documentation to prove vaccination status. Id. Moreover, if an employee communicates to his employer that he is not vaccinated because of a disability or sincerely held religious belief, then it is up to the federal contractor to "review and consider what, if any, accommodation it must offer." Id.
Executive Order 14,043 directs each federal agency to "implement ... a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law." 86 Fed. Reg. 50989.2 It directs the Safer Federal Workforce Task Force to "issue guidance ... on agency implementation of this requirement for all agencies covered by this order." Id. The resulting guidance advises that "[f]ederal employees need to be fully vaccinated by November 22, 2021." Vaccinations , Safer Federal Workforce, https://www.saferfederalworkforce.gov/faq/vaccinations (last visited Dec. 7, 2021) ("Federal Employee Guidance"). It goes on to explain that federal employees are not "considered fully vaccinated for COVID-19" until "2 weeks after they have received the requisite number of doses of a COVID-19 vaccine." Id. As a result, except as discussed below, federal employees were required to 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." Id. The guidance cautions that employees who "fail to comply with a requirement to be fully vaccinated ... and have neither...
To continue reading
Request your trial