Navy Seal 1 v. Biden

• Decision Date: 22 November 2021
• Docket Number: Case No. 8:21-cv-2429-SDM-TGW
• Parties: NAVY SEAL 1, et al., Plaintiffs, v. Joseph R. BIDEN, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

574 F.Supp.3d 1124

NAVY SEAL 1, et al., Plaintiffs,

v.Joseph R. BIDEN, et al., Defendants.

Case No. 8:21-cv-2429-SDM-TGW

United States District Court, M.D. Florida, Tampa Division.

Signed November 22, 2021

Mathew D. Staver, Daniel Joseph Schmid, Horatio G. Mihet, Roger K. Gannam, Liberty Counsel, Orlando, FL, for Plaintiffs.

Amy Powell, Raleigh, NC, Andrew Evan Carmichael, Courtney Enlow, Robert Charles Merritt, Zach A. Avallone, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.

Steven Merryday, District Judge

ORDER

On August 23, 2021, the FDA licensed Pfizer's COVID-19 vaccine. On August 24, 2021, the Department of Defense (DoD) directed each branch of the military to require "full vaccination

of all members of the Armed Forces." As a result, each branch by regulation requires "full vaccination" (that is, the final injection plus fourteen days) not later than a stated day: November 2, 2021, for the Air Force; November 22, 2021, for the Coast Guard; November 28, 2021, for the Navy and Marines; and December 15, 2021, for the Army.

Although each branch permits a service member to request a religious exemption (and other exemptions) and although each branch defers the vaccine requirement during the request and any appeals, the military's data (Doc. 34) show that the military through mid-November has received about 16,643 requests for religious exemption and denied about 2,223, which resulted in 466 appeals. The military had finally denied only one request but had granted none, preliminarily or otherwise.

On September 9, 2021, President Biden issued Executive Order 14042, which causes federal agencies to include in any new, renewed, or modified contract a federal task force's guidance requiring the vaccination

of a federal contractors’ employees not "entitled to an accommodation." Also on September 9, 2021, President Biden issued Executive Order 14043, which directs each federal agency to require the vaccination of every federal civilian employee "with exceptions only as required by law." The executive orders and implementing guidance commit to the employing agency or contractor the discretion to resolve a religious exemption.

Harboring a religious objection to the COVID-19 vaccine, the plaintiffs sued and promptly moved to preliminarily enjoin the military directive and the executive orders. The plaintiffs comprise service members in each branch (except the Space Force), a federal contractor, and employees of other federal contractors (but no employee of a federal agency) and sue President Biden (but no federal agency) and the Secretary of DoD and the Department of Homeland Security (but no branch of the armed forces). The plaintiffs move to represent a putative class of all service members, all federal contractors, all employees of federal contractors, and all federal civilian employees. The plaintiffs claim that the military directive and the executive orders violate the "informed consent" provisions of 21 U.S.C. § 360bbb-3 (Count I), the Free Exercise Clause of the First Amendment (Count II), and the Religious Freedom Restoration Act (RFRA) (Count III). The complaint and the plaintiffs’ other papers identify each plaintiff by title but not by name, and no motion to proceed pseudonymously appears.

PRELIMINARY ISSUES

1. No plaintiff is a federal civilian employee.

The plaintiffs sue to enjoin Executive Order 14043, which directs each federal agency to require the vaccination

of the agency's federal civilian employees, but no plaintiff is a federal civilian employee. Although the complaint identifies a plaintiff as "Department of Energy Civilian Nuclear Tech," during the hearing on the motion for a preliminary injunction counsel for the plaintiffs acknowledged that Civilian Nuclear Tech works for a federal contractor, not a federal agency. Because no plaintiff is a federal civilian employee, the plaintiffs cannot challenge Executive Order 14043. California v. Texas , ––– U.S. ––––, 141 S. Ct. 2104, 2114–16, 210 L.Ed.2d 230 (2021) ; Lewis v. Casey , 518 U.S. 343, 357, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("[N]amed plaintiffs who represent [the] class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class[.]’ ")

2. Each executive order includes a religious exemption.

Challenging Executive Orders 14042 and 14043 as violative of the Free Exercise Clause and RFRA (Counts II and III), the plaintiffs claim that the executive orders "prohibit[ ] Plaintiffs from seeking and receiving exemption and accommodation for their sincerely held religious beliefs against the COVID-19 vaccines." (Doc. 1 ¶ 198) But Executive Orders 14042 and 14043 expressly require religious exemption, and federal guidance commits to the employing federal contractor and to the employing federal agency, respectively, the discretion to resolve an employee's request for a religious exemption.¹ Further, the complaint includes no federal civilian employee, and the record remains devoid of material suggesting that any plaintiff's employer is a federal contractor "covered" by Executive Order 14043. Finally, the complaint alleges that a contractor unlawfully denied an employee plaintiff's request for a religious exemption. Although an employer's unlawful denial might support a claim against the employer, the denial supports no challenge to the executive orders, which commit to the employer the discretion to resolve a religious exemption.²

3. No injunctive or declaratory relief can issue against the President.

Although injunctive and declaratory relief can issue against a subordinate official or agency charged to implement an executive order, the plaintiffs sue President Biden but no subordinate official implementing Executive Orders 14042 or 14043. "With regard to the President, courts do not have jurisdiction to enjoin him...and have never submitted the President to declaratory relief." Newdow v. Roberts , 603 F.3d 1002, 1013 (D.C. Cir. 2010) ; Franklin v. Massachusetts , 505 U.S. 788, 802–03, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ("[I]n general this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties." (quotation marks omitted)). Although a statute can authorize review of a president's action, RFRA lacks an "express statement by Congress" evincing statutory authority to review the President's action under RFRA. Franklin at 801, 112 S.Ct. 2767 ; Newdow v. Bush , 355 F. Supp. 2d 265, 280–82 (D.D.C. 2005) (applying Franklin to deny a preliminary injunction asserting a RFRA claim against President Bush).

4. No private right of action exists under 21 U.S.C. § 360bbb-3.

Challenging the executive orders, the civilian plaintiffs sue under the "informed consent" provisions of 21 U.S.C. § 360bbb-3(e)(1)(A), which requires the FDA to establish for an emergency product "[a]ppropriate conditions designed to ensure that individuals to whom the product is administered are informed" of "the option to accept or refuse administration of the product[.]" But this statutory "option to accept or refuse" an emergency vaccine confers no private right of action, creates no " ‘opportunity to sue the government[,]’ " and permits enforcement by the United States and by the states in specific circumstances only. Doe v. Franklin Square Union Free Sch. Dst. , 568 F.Supp.3d 270, 292 (E.D.N.Y. 2021) (citing Bridges v. Houston Methodist Hosp. , 543 F.Supp.3d 525, 527–28 (S.D. Tex. 2021) ).

5. No service member can likely prevail under 10 U.S.C. § 1107a.

Challenging the injection of a vaccine that (according to the plaintiffs) the FDA has authorized for emergency use only, the service-member plaintiffs sue the DoD under 10 U.S.C. § 1107a,³ which, the defendants apparently concede, prohibits the military's administering an emergency vaccine without the service member's consent.

Although the FDA licensed Pfizer's vaccine as "safe and effective," the plaintiffs argue that the licensed vaccine, which the FDA license permits Pfizer to market as "Comirnaty," remains unavailable in the United States. The service-member plaintiffs contend that the vaccination

deadline compels their accepting without consent the injection of an emergency vaccine.

Pfizer has produced vaccines bearing the "emergency use authorization" label but nonetheless complying with the technical, scientific, compositional, manufacturing, and other requirements of the FDA license. (Doc. 23-14 ¶ 13) Comirnaty comprises "the same formulation as" Pfizer's emergency vaccine and "can be used interchangeably...to provide [the two-dose] vaccination

series[.]" (Doc. 23-14 at 33) The plaintiffs identify no factual distinction between Pfizer's vaccine bearing the emergency label but produced in compliance with the FDA license and Pfizer's "interchangeable" vaccine bearing the Comirnaty label. Also, the plaintiffs identify no legal distinction pertinent to informed consent under 10 U.S.C. § 1107a. The August 24, 2021 DoD memorandum states that "[m]andatory vaccination against COVID-19 will only use COVID-19 vaccines that receive full licensure" and that the DoD possesses and "is using" "hundreds of thousands" of Pfizer vaccines bearing the emergency label but complying with the FDA license. (Doc. 23-15 ¶ 18) Nothing in the record suggests that a service-member plaintiff, each of whom remains temporarily exempt from the military's vaccination requirement during the pendency of a request for religious exemption and during any appeal, requested or was denied a Pfizer vaccine complying with the FDA license. The plaintiffs fail to show that the military will require — imminently or otherwise — a service-member plaintiff to receive an emergency vaccine not complying with the FDA license. Doe v. Austin , No. 3:21-cv-1211, Doc. 47, 572 F.Supp.3d 1224 (N.D. Fla. Nov. 11, 2021) (Winsor, J.) (denying a preliminary injunction "[b]ecause the [service-member] plaintiffs have not shown they are (or...