Payne v. Biden
| Citation | 602 F.Supp.3d 147 |
| Decision Date | 12 May 2022 |
| Docket Number | Civil Action No. 21-3077 (JEB) |
| Parties | Jason PAYNE, Plaintiff, v. Joseph R. BIDEN, Jr., et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Reed Darrow Rubinstein, America First Legal Foundation, Washington, DC, for Plaintiff.
Paul Cirino, DOJ-ENRD, Washington, DC, for Defendants.
A jab or a job? Plaintiff Jason Payne is a federal civilian employee who claims that the Executive Order requiring COVID-19 vaccination
for covered federal employees unlawfully puts him to this choice. Last fall, President Joseph Biden issued Executive Order 14,043, which mandates vaccinations for executive-branch employees, subject to a medical or religious exception. Payne, who works for the Navy, refuses to be vaccinated and has not applied for an exception. He instead filed this lawsuit against a number of federal agencies and officials, alleging that the Executive Order and the associated agency actions are unconstitutional for several reasons. After Plaintiff moved for summary judgment, the Government filed a Motion to Dismiss. The Court will grant the Government's Motion because the Civil Service Reform Act deprives the Court of subject-matter jurisdiction over this workplace dispute involving a covered federal employee.
In September 2021, President Biden issued Executive Order 14,043, which announced a COVID-19 vaccination
requirement for many federal employees. See Exec. Order No. 14,043, 86 Fed. Reg. 50,989, 50,989 (Sept. 9, 2021). The Order, which was designed to "ensur[e] the health and safety of the Federal workforce and the efficiency of the civil service," directs the Safer Federal Workforce Task Force to issue guidance on implementation of the vaccination requirement. Id. at 50,989–90; see Exec. Order No. 13,991, 86 Fed. Reg. 7045, 7046 (Jan. 25, 2021) (establishing Task Force).
The Task Force guidance recognizes, consistent with the Executive Order, that federal employees may be entitled to exceptions from the vaccination
requirement based on disabilities, including medical conditions, or religious objections. See Safer Federal Workforce, Vaccinations, Limited Exceptions to Vaccination Requirement (last visited May 12, 2022), https://bit.ly/37Ectq2. The guidance further states that federal employees who have not requested an exception should be fully vaccinated by November 22, 2021. See Safer Federal Workforce, Vaccinations, Vaccination Requirement for Federal Employees (last visited May 12, 2022), https://bit.ly/37Ectq2. If an employee refuses to get vaccinated and either has not requested an exception or has had a request denied, then the guidance from the Task Force and the Office of Personnel Management recommends a procedure of progressive discipline, ranging from education and counseling to suspension and termination if the noncompliance persists. See Safer Federal Workforce, Vaccinations, Enforcement of Vaccination Requirement for Employees (last visited May 12, 2022), https://bit.ly/37Ectq2.
Taking the facts alleged in Payne's Complaint as true, he is a federal civilian employee who works as an engineer for the Office of Naval Research, a component of the Department of the Navy. See ECF No. 1 (Compl.), ¶ 6. He has been a member of the civil service for over two decades. Id., ¶ 2. Plaintiff alleges that, at some unspecified time in the past, he contracted COVID-19 and recovered. Id., ¶ 7. In his view, he thereby "acquir[ed] natural immunity against the disease." Id. Payne now "refuses to accept the COVID-19 vaccination
mandated by ... [D]efendants" pursuant to the Executive Order. Id., ¶ 76. He has not alleged that he applied for or intends to apply for a medical or religious exception, nor that he so qualifies. Id.
On October 1, 2021, in keeping with the guidance described above, OPM issued a memorandum directing agencies to require non-excepted employees to be fully vaccinated by November 22, 2021. See ECF No. 1-5 () at 1. The memorandum also advised that covered employees’ "failure to comply will result in disciplinary action up to and including removal or termination." Id. That same day, the Defense Department issued a memorandum requiring civilian employees to be "fully vaccinated" by November 22, 2021. See ECF No. 1-6 (Memorandum for Senior Pentagon Leadership) at 1. A month later, the Navy issued a memorandum clarifying that "[e]vidence of COVID-19 anti-bodies as a result of previous infection(s) does not satisfy this vaccination
requirement; these individuals must also be fully vaccinated." ECF No. 1-9 (COVID-19 Mandatory Vaccination Plan for Civilian Employees) at 3. The memorandum reiterated that all civilian employees must be fully vaccinated by November 22, and that they may be disciplined for failure to do so unless the employee has applied for or received an exception. Id. at 10–11. By that date, Payne had neither submitted the required form to his supervisors indicating his vaccination
status nor applied for an exception, and he had "advised his direct supervisors that he declines vaccination." Compl., ¶¶ 53–54.
On November 22, 2021 — the day that Plaintiff was required to be fully vaccinated — he filed this lawsuit against Defendants President Biden and a number of other federal officials and agencies. The Complaint alleges that he has already suffered a number of consequences in his job "for refusing vaccination
," such as "being forced to wear a mask when those who are vaccinated did not have to wear one," having his official travel subjected to additional scrutiny, being subject to additional COVID-19 testing requirements, and more. Id., ¶ 56. He also alleges that "[D]efendants have promised he will lose his job" for failing to comply with the vaccination requirement. Id., ¶ 2.
Payne's three-count Complaint contends that Executive Order 14,043 and the associated Task Force and agency actions violate the separation of powers and his Fifth Amendment right to privacy, as well as impose an unconstitutional condition on his employment. Id., ¶¶ 60–86. He seeks declaratory and injunctive relief. Id. at 26.
Just two days after filing this lawsuit, Plaintiff filed a Motion for Summary Judgment on each of his three claims. See ECF No. 4 (Pl. MSJ). After Defendants indicated that they planned to file a Motion to Dismiss, the Court ordered them to file a combined Motion to Dismiss and Opposition to Motion for Summary Judgment. See Minute Order of Jan. 3, 2022. The briefing is now complete on these dueling Motions.
As the Court need address only Defendants’ Motion, it sets out that standard alone. That Motion discusses dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). When a defendant seeks dismissal under Rule 12(b)(1), the plaintiff must demonstrate that the court has subject-matter jurisdiction to hear his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). "Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim," the court has "an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). "Absent subject matter jurisdiction over a case, the court must dismiss it." Bell v. U.S. Dep't of Health & Human Servs., 67 F. Supp. 3d 320, 322 (D.D.C. 2014).
In policing its jurisdictional borders, the court must scrutinize the complaint, granting the plaintiff the benefit of all reasonable inferences that can be derived from the alleged facts. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The court need not rely "on the complaint standing alone," however, but may also look to undisputed facts in the record or resolve disputed ones. See Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Nor need the court accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint or merely amount to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Federal Rule of Civil Procedure 12(b)(6), meanwhile, a court must dismiss a suit when the complaint "fail[s] to state a claim upon which relief can be granted." In evaluating a motion to dismiss, the Court must "treat the complaint's factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation omitted). A plaintiff may survive a Rule 12(b)(6) motion even if "recovery is very remote and unlikely," but the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,...
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