Tessanne v. Children's Hosp. Med. Ctr. of Akron
| Decision Date | 10 May 2023 |
| Docket Number | 5:22-CV-00354 |
| Parties | BRYAN TESSANNE, et al., Plaintiffs, v. CHILDREN'S HOSPITAL MEDICAL CENTER OF AKRON, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
The Court has been asked to determine whether Plaintiffs Bryan Tessanne and Richard Brimer's Complaint against Defendant Children's Hospital Medical Center of Akron (the “Hospital”) states a claim upon which this Court may afford them relief. (ECF No. 9, Mtn. to Dismiss). Plaintiffs claim that the Hospital's COVID-19 employee vaccination policy, which required existing employees to receive a COVID-19 vaccine in exchange for their continued employment, violates their First Amendment rights to freely exercise their sincerely held religious beliefs. (ECF No. 1 Compl., PagelD# 8-9). The Hospital argues that it is a private entity rather than a government actor, and therefore the First Amendment neither applies to its vaccination policy nor confers subject matter jurisdiction on this Court. (ECF No. 9, PageID# 42). Plaintiffs counter that a mandate from the Centers for Medicare and Medicaid Services (“CMS”), which threatened the Hospital's Medicare and Medicaid funding if the Hospital did not implement a COVID-19 vaccination policy for its employees transformed the Hospital into a government actor. (ECF No 12, Br. in Opp. to Mtn. to Dismiss, PageID# 60). The Court finds that the Hospital is not a government actor, and this Court lacks subject matter jurisdiction to hear this case. The Hospital's Motion to Dismiss is therefore GRANTED.
On November 5, 2021, CMS published an interim final rule requiring facilities reimbursed for services performed on behalf of Medicare and Medicaid recipients to develop mandatory COVID-19 vaccination policies for employees (the “Mandate”). (ECF No. 1, PageID# 2); see Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 86 Fed.Reg. 61,555 (Nov. 5, 2021). The Mandate advises health care facilities that they “may also be required to provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.” 86 Fed.Reg. 61,569. Facilities are afforded discretion to establish exemption processes and procedures to implement the religious exemption. Id. at 61,572. The Mandate required healthcare workers to be vaccinated against COVID-19 by January 4, 2022. (ECF No. 1, PageID# 2); 86 Fed.Reg. 61,555.
The Mandate was challenged in federal court, and enforcement was temporarily enjoined. Biden v. Missouri, 142 S.Ct. 647 (2022). After the Supreme Court decided that the Mandate was constitutional, CMS issued new guidance requiring healthcare workers to receive their first vaccine dose by February 14, 2022, and second dose by March 15, 2022. (ECF No. 1, PageID# 3); DEPARTMENT OF HEALTH & HUMAN SERVICES, GUIDANCE FOR THE INTERIM FINAL RULE -MEDICARE AND MEDICAID PROGRAMS; OMNIBUS COVID-19 HEALTH CARE STAFF VACCINATION, Ref. QSo-22-09-ALL (Jan. 14, 2022), https://www.cms.gov/files/document/qso-22-09-all-injunction-lifted-expired.pdf (last visited Apr. 18, 2023).
While official enforcement of the Mandate was enjoined, the Hospital decided to move forward with a mandatory vaccination policy for its employees (the “Policy”). (EcF No. 1, PageID# 3, 6; ECF No. 9, PageID# 38). Despite the Hospital's election to implement its Policy in the absence of an active Mandate, Plaintiffs allege that the Policy “was occasioned by the mandates of the Federal Government and the threats that [underlie] those mandates, namely that the institutions may be ineligible to receive Medicare and Medicaid money if they do not enforce compliance [with the CMS policy].” (ECF No. 1, PageID# 3). See 86 Fed.Reg. 61,569.
The Hospital's Policy required employees to receive a vaccination or an exemption by January 11, 2022. (ECF No. 1, PageID# 3; ECF No. 9, PageID# 38). The Hospital claims that its religious exemption policy tracks with the Mandate's language, which bases exemptions on federal law. (ECF No. 9, PageID# 38). Plaintiffs allege that the Hospital denied hundreds of requests for religious exemption from the Policy, including theirs. (ECF No. 1, PageID# 3).
Unvaccinated and unexcused employees were to be placed on suspension as of January 11, 2022. (ECF No. 1, PageID# 4). The Policy included a grace period, which gave suspended employees until January 27, 2022, to receive a vaccination or face termination. (ECF No. 1, PageID# 4; ECF No. 9, PageID# 39). The Policy also included a second grace period, permitting terminated employees to receive reinstatement if they provided proof of vaccination by February 27, 2022. (Id.).
Plaintiffs applied for exemptions from the Policy based on their sincerely held Christian beliefs. (ECF No. 1, PagelD# 4-6). They allege that their applications were summarily denied, and that the Hospital did not engage in a meaningful, interactive review process despite Plaintiffs' explanations of their religious beliefs. (Id. at PageID# 6). Pursuant to the Policy, Plaintiffs were eventually terminated. (Id.). Plaintiffs have now sued the Hospital, seeking a declaration that the Policy violated their First Amendment rights to freely exercise their religious beliefs. (Id. at PagelD# 8-10).
The Hospital filed a Motion to Dismiss this case under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (ECF No. 9). The Court must first determine whether it has subject matter jurisdiction under Rule 12(b)(1), since a lack of subject matter jurisdiction renders the Hospital's Rule 12(b)(6) motion moot. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)). Title 28 U.S.C. § 1331 provides for what is commonly referred to as federal question jurisdiction: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Determining whether a federal court has federal question jurisdiction requires the Court to look beyond the plaintiff's characterization of his claim and “see whether the alleged claim actually ‘arises under' the Constitution or federal statutes and is not made solely for the purpose of obtaining jurisdiction.” Bush v. State Indus., Inc., 599 F.2d 780, 784 (6th Cir. 1979).
When a defendant challenges subject matter jurisdiction, “the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Moir, 895 F.2d at 269 (citing Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). A facial attack like that which the Hospital asserts “challenges the sufficiency of the pleading, and the court takes the allegations in the complaint as true and construes them in the light most favorable to the plaintiff.” Cox v. Bd. of Cnty. Comm'rs of Franklin Cnty., 436 F.Supp.3d 1070, 1077 (S.D. Ohio 2020) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1187 (6th Cir. 1994).
A. The Hospital's Motion to Dismiss
The legal authority cited by both parties explains that the Declaratory Judgment Act, 28 U.S.C. § 2201, does not supply the Court with an independent basis for subject matter jurisdiction; the Declaratory Judgment Act requires an additional “federal question” to generate a federal district court's subject matter jurisdiction. See, e.g., Denson v. Donald J. Trump for Pres., Inc., 530 F.Supp.3d 412, 417 (S.D.N.Y.) (); Seibert v. Baptist, 594 F.2d 423, 428 (5th Cir.), on reh'g, 599 F.2d 743 (5th Cir. 1979) (); Aguilera v. Dist. Dir., 423 Fed.Appx. 916, 918 (11th Cir. 2011) (affirming dismissal for lack of subject matter jurisdiction when the plaintiff alleged the Declaratory Judgment Act, the Administrative Procedures Act, and the Mandamus Act as jurisdictional bases, but the plaintiff's APA and Mandamus Act claims failed to state a claim upon which relief could be granted).
Indeed, it is well settled that “[t]he Declaratory Judgment Act does not create an independent basis for federal subject matter jurisdiction.” Heydon v. MediaOne of Southeast Michigan, Inc., 327 F.3d 466, 470 (6th Cir. 2003) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950)); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937) ( that the Declaratory Judgment Act is procedural only). Since the Act merely provides the court with discretion to fashion a remedy, the court must already have subject matter jurisdiction before the Act may be invoked. Id. (citing Pub. Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 241 (1952); King v. Sloane, 545 F.2d 7, 8 (6th Cir. 1976)).
Plaintiffs base jurisdiction on the Declaratory Judgment Act and the ...
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