Rodriguez-Velez v. Pierluisi-Urrutia
| Docket Number | CIVIL 21-1366 (PAD) |
| Decision Date | 01 November 2021 |
| Parties | ZULAY RODRIGUEZ-VELEZ, et al., Plaintiffs, v. PEDRO R. PIERLUISI-URRUTIA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Plaintiffs are career employees of the Executive Branch of the Government of Puerto Rico (“Government”). They sued the Governor, Hon. Pedro R. Pierluisi-Urrutia, in his official capacity pursuant to 42 U.S.C. § 1983 challenging on its face and as applied Executive Order (“EO”) 21058, which requires, subject to exceptions, that all Government employees be vaccinated against COVID-19. In their view, the vaccination mandate violates the Due Process Clause of the Fourteenth Amendment and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-2000bb940.[1] Further, invoking the court's supplementary jurisdiction, they contend that the mandate runs contrary to the dignity and privacy provisions of the Constitution of the Commonwealth of Puerto Rico. They amended the complaint and moved for a preliminary injunction to block implementation of EO 21-058. The Governor opposed the request for preliminary injunction and asked that the action be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
With the filings in place, the court held a 6-day preliminary injunction hearing. Having carefully studied all of the filings, relevant sources of authority, documentary evidence and the testimony of the witnesses that testified during the hearing, the request for preliminary injunction is DENIED. Over and above, plaintiffs did not present a cognizable claim for which relief may be granted. In consequence, the case must be, and is HEREBY DISMISSED. As explained in detail below, EO 21-058 serves a compelling state interest; is directly linked to a public-health crisis; contains reasonable opt-outs for those who do not wish to vaccinate and does not violate the Due Process Clause of the Fourteenth Amendment, the RFRA or the dignity-privacy provisions of the Constitution of Puerto Rico.
The case comes at a critical moment in humankind's history, in the context of an ongoing global COVID-19 pandemic, with new infections and deaths being reported every day. A COVID-19 outbreak was first identified in January 2020 in Wuhan, China, and it has since swept the globe. See, https://www.who.int/news/item/27-04-2020-who-timeline-covid-19 (last visited October 13, 2021). The seriousness of the outbreak came to the attention of many on January 30, 2020, when the United Nations World Health Organization (“WHO”) declared the effects of the outbreak a public health emergency. Id. The next day, the United States Department of Health and Human Services (“HHS”) declared the same. See, https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.[2] The outbreak was officially classified as a pandemic by the WHO on March 11, 2020. See, https://www.who.int/news/item/27-04-2020-who-timeline-covid-19 (last visited October 13, 2021). Later that month, then Governor Wanda Vazquez issued a Declaration of Emergency in Puerto Rico citing the WHO and HHS declarations. See, EO 2020-020. On March 13, 2020, President Donald Trump declared a national emergency. See, Proclamation 9994.[3] The pandemic has affected public health systems, as well as the daily individual, social, and economic life of all persons, not only in Puerto Rico, but in the United States, and the rest of the world.
Worldwide, COVID-19 has infected almost 230 million people and caused over four million deaths, with these numbers still changing daily. See, https://covid19.who.int/ (last visited September 24, 2021). In the United States, the virus has infected over 33.5 million persons, and over 600, 000 have died. Id. Since March 2020, Puerto Rico has had 150, 598 confirmed cases; 32, 263 probable cases; and 3, 199 deaths. See, https://www.salud.gov.pr/estadisticasv2#casos (confirmed and probable cases); https://www.salud.gov.pr/estadisticasv2#defunciones (deaths). A spike in cases occurred in 2021 as a result of the Delta variant of the virus.
COVID-19 “caught the world unaware.” Klaassen v. Trustees of Indiana University, - F.Supp.3d----, 2021 WL 3073926, *8 (N.D. Ind. July 18, 2021). Initially, “there were no vaccines or treatments, and testing was expensive and difficult to secure.” Id. Four days after the HHS declared a public health emergency, it issued a second declaration allowing the United States Food and Drug Administration (“FDA”) to grant emergency use authorizations (“EUAs”) for medical devices and interventions to combat the pandemic. See, 85 Fed.Reg. 7316, 7316-7317, 85 Fed. Reg. 18250, 18250-18251. In the United States, three vaccines moved to the forefront: two using mRNA technology and one using a viral vector. See, Klaassen, 2021 WL 3073926 at *8 ( development). Pfizer's and Moderna's vaccines use mRNA, a novel type of vaccine, but one based on decades of research using easily accessible materials found already in many laboratories. Id. Johnson & Johnson' vaccine is a viral vector vaccine, implementing technology from the 1970's that uses a modified version of a virus to teach the immune system how to respond. Id.
On November 20, 2020, Pfizer applied for an EUA, which the FDA granted on December 11, 2020. See, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid- 19/comirnaty-and-pfizer-biontech-covid- 19-vaccine. On August 23, 2021, the FDA approved the Pfizer vaccine for use in individuals 16 years and older (Docket No. 51, ¶ 12). On November 30, 2020, Moderna applied for an EUA, which the FDA granted on December 18, 2020. See, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/moderna-covid-19-vaccine. On February 4, 2021, Janssen, a Johnson & Johnson company, applied for an EUA, which the FDA granted on February 27, 2021. See, https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/j anssen-covid- 19-vaccine.
As of October 12, 2021, 403, 576, 826 doses of vaccine had been administered, including to 187.7 million people in the United States, so that 56.5% percent of the total population in the United States is fully vaccinated. See, https://covid.cdc.gov/covid-data-tracker/#vaccinationsvacc-total-admin-rate-total. Of adults over the age of 18, 67.9% are fully vaccinated. Id. In Puerto Rico, 2, 507, 606 doses have been administered and 2, 272, 550 or 79.8% of those over the age of twelve are fully vaccinated. See, https://www.salud.gov.pr/estadisticasv2#vacunacion. The Centers for Disease Control (“CDC”) recommends that all persons older than 12 years old vaccinate against COVID-19 as soon as possible to be protected from both the illness and the severe complications that could occur. See, https://covid.cdc.gov/covid-data-tracker/#vaccine-effectiveness.
On July 28, 2021, the Governor of Puerto Rico issued EO 21-058, to address the spike of positive cases, hospitalizations, and death tolls resulting from the Delta variant. See, https://www.estado.pr.gov/es/ordenes-ejecutivas/. He acted pursuant to Section 5.10 of the Puerto Rico Public Safety Department Act, Law No. 20 of April 10, 2017, which empowers him to, upon declaring a state of emergency or a disaster, promulgate measures as are necessary to manage said emergency, which shall be in effect for the duration of the emergency to protect the safety, health, and property of all the citizens of Puerto Rico. See, Sec. 5.10 of Law No. 20.
Section 1 of EO 21-058 requires public employees of the Executive Branch that work inperson to be vaccinated in order to safeguard the health and lives of their peers and of all the citizens that seek in-person services in government agencies. Taking that into account, Section 1 requires that those employees be fully vaccinated by September 30, 2021. The requirement is satisfied by providing a copy of the “COVID-19 Vaccination Record Card” or a document attesting to the completion or beginning of the vaccination process (Docket No. 11-1, pp. 9-10).
Section 2 of EO 21-058 puts in place medical and religious “opt-outs” for public employees that do not want to be inoculated with a COVID-19 vaccine. First, the medical exemption provides that employees whose immune system is compromised, are allergic to vaccines, or have a medical contraindication to the receipt of the vaccine shall be exempt from the COVID-19 vaccination requirement, but must provide a certification issued by a physician authorized to practice in Puerto Rico, who shall also certify the duration of the medical contraindication, and whether it is permanent or temporary. Once the contraindication ceases, the employee must comply with the vaccination mandate established in the Executive Order (Docket No. 11-1, p. 10). Second, the religious exemption provides that the employee may refuse vaccination on the basis of religious beliefs if the vaccines are against the employee's religious observance. In that case, the employee must furnish an affidavit of religious objection whereby the employee, together with the minister or spiritual leader of her church or religion, state under oath and under penalty of perjury that on the basis of her religious beliefs, the employee cannot receive a COVID-19 vaccine. Id. at 10-11. Public employees that opt to invoke one of these exemptions must provide a weekly negative SARS-CoV2 test (Nucleic Acid Amplification Test and antigen tests) performed within the last 72 hours. Id. at 11.
Section 3 of EO 21-058 provides a general “opt-out” for public employees that refuse to inoculate for any personal reason. It states that any government employee who fails to furnish...
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