Wright-Gottshall v. New Jersey
| Docket Number | Civil Action 3:21-cv-18954-PGS-DEA |
| Decision Date | 01 May 2023 |
| Parties | WRIGHT-GOTTSHALL et al., Plaintiffs, v. STATE OF NEW JERSEY, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Twenty-three plaintiffs commenced this action against the State of New Jersey, Governor Philip Murphy (in his official and personal capacity), the New Jersey Supreme Court, Chief Justice Stuart Rabner (in his official and personal capacity), Glenn A Grant, J.A.D. (in his official and personal capacity) and the New Jersey Office of Legislative Services (collectively “Defendants”). Plaintiffs are government employees or contractors who chose not to be vaccinated against COVID-19 and therefore, were required to comply with the COVID-19 testing mandates put in place by the Executive Legislative and Judiciary branches of the New Jersey State government. By way of this action, Plaintiffs seek declaratory and injunctive relief and damages arising out of alleged violations of their constitutional rights in connection with the testing mandates. Specifically Plaintiffs asserts violations of their First Amendment right to free exercise of religion, Fourth Amendment right to be free from unreasonable search and seizure, Fourteenth Amendment rights to liberty and privacy and the Equal Protection Clause, and rights under the New Jersey State Constitution. They also assert violations of 42 U.S.C. § 1983. Each plaintiff submitted a sworn declaration setting forth the reasons why the mandate applicable to him or her imposed a hardship or inconvenience and violated his or her constitutional rights. (ECF Nos. 34-9 - 34-32).
On January 18, 2022, Defendants moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6). (ECF No. 10). While that motion remained pending, on August 5, 2022, Plaintiffs filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction, which sought to enjoin Defendants from enforcing the testing mandates. (ECF No. 19). Following the termination of all three mandates, on August 29, 2022, Plaintiffs withdrew their motion. (ECF No. 29).
In addition, while Defendants' Motion to Dismiss remained pending, Plaintiffs moved for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a)(2). (ECF No. 27). The proposed amendments sought to hold Governor Murphy, Chief Justice Rabner and Administrative Director Grant (the “Individual Defendants”) liable in their personal capacity and seek damages against Defendants because “most Plaintiffs had not been damaged when the Complaint was originally filed so damages could not have been plead [sic] at that time.” (ECF No. 27 at 3). The Court granted Plaintiffs' Motion for Leave and simultaneously terminated Defendants' Motion to Dismiss without prejudice. (ECF No. 33). On September 23, 2022, Plaintiffs filed an Amended Complaint, which seeks relief in the form of consequential, emotional and punitive damages. (ECF No. 34).
Thereafter, Defendants filed a Motion to Dismiss the Amended Complaint pursuant to Rule 12(b)(1) and (6), which is presently before the Court. (ECF No. 36). For the reasons set forth below, the Court will grant Defendants' Motion to Dismiss.
In response to the public health emergency caused by the COVID-19 pandemic, on August 23, 2021, Governor Murphy issued Executive Order 253 (“EO 253”). (Am. Compl. ¶ 14; ECF No. 34-1). EO 253 mandated that “[a]ll public, private and parochial preschool programs and elementary and secondary schools, including charter and renaissance schools (“covered settings”)... maintain a policy that requires all covered workers to either provide adequate proof to the covered setting that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly.” (Am. Compl. ¶¶ 15-16; ECF No. 34-1). To satisfy the testing requirement, EO 253 mandated a covered worker undergo testing one to two times per week on an ongoing basis until fully vaccinated. (Am. Compl. ¶¶ 16-17; ECF No. 34-1). “Covered workers” included “all individuals employed by the covered setting, both full- and part-time.” (Am. Compl. ¶ 18; ECF No. 34-1). EO 253 went into effect on October 18, 2021. (ECF No. 34-1).
Subsequently, on August 15, 2022, Governor Murphy issued Executive Order 302 (“EO 302”), which rescinded EO 253 effective immediately.[1] (ECF No. 36-2, Ex. 5). The reasons cited in EO 302 for the recission of EO 253 included the administration of over 18.4 million doses of the COVID-19 vaccine in the State, “stable rates on key benchmark statistics, such as the number of hospitalized patients, patients in intensive care, and ventilators in use, and the spot positivity of COVID-19 tests.” (Id.). In addition, EO 302 cited guidance from the Centers for Disease Control and Prevention (“CDC”) issued on August 11, 2022 that recognized “high levels of vaccine and infection-induced immunity and the availability of effective treatments and prevention tools [that] have substantially reduced the risk for medically significant COVID-19 illness, and associated hospitalization and death.” (Id.). EO 302 further states “in light of the CDC's updated guidance, and given the progress the State has made, the State can begin to responsibly lift certain mitigation protocols in place. As a result of EO 302, the requirement that unvaccinated covered workers submit to weekly or twice weekly testing was effectively terminated.
On August 6, 2021 and August 11, 2021, Chief Justice Stuart Rabner and Administrative Director Glenn A. Grant sent a broadcast message announcing the New Jersey Judiciary's COVID-19 vaccination and testing policy. (Am. Compl. ¶¶ 30, 36; ECF Nos. 34-2, 34-7). A memorandum from Administrative Director Grant dated August 11, 2021 set forth further details of the Judiciary's policy. (Am. Compl. ¶ 39; ECF No. 34-8). Citing worsening COVID-19 trends, including the spread of the Delta variant, and the need to prevent further illness and death, the policy required all judiciary staff and state court judges to provide proof of full COVID-19 vaccination status or the results of a weekly COVID-19 test. (Am. Compl. ¶¶ 30, 38; ECF Nos. 34-2, 34-7, 34-8). Those who chose to undergo weekly COVID-19 tests were required to do so from Saturday morning through Wednesday night each week at an approved testing facility and submit the results of the test electronically on an online portal maintained by the Judiciary no later than 11:00 a.m. on the Friday following the test. (ECF No. 34-8). Testing conducted during work hours required employees to use sick leave or request the use of vacation and/or administrative leave. (Id.).
Employees who did not submit a negative test result by 11:00 a.m. on Friday were excluded from the work location on the next scheduled on-site workday and could be excluded for up to 24 hours after submission of a negative result. (Id.). Excluded employees were required to use administrative, sick or vacation time if remote work was not supported. (Id.). Upon exhaustion of available leave, the absence was considered unauthorized and unpaid. (Id.).
The policy took effect on August 20, 2021. (Id.). Effective September 1, 2022, the policy was terminated based on updated guidance from the CDC. (ECF No. 36-2, Ex. 4).
On September 20, 2021, Christin Knox, Director of Human Resources for the New Jersey Office of Legislative Services (“NJOLS”) sent an email to employees detailing NJOLS's COVID-19 vaccination and testing policy. (ECF No. 36-2, Ex. 3). Effective October 25, 2021, the policy required employees to provide proof of vaccination or undergo weekly COVID-19 PCR testing. (Id.). Unvaccinated employees were required to test three days prior to submitting results, which were due each Monday by 10:00 a.m. (Id.). Failure to submit test results on time required employees to use accumulated leave time. (Id.). If accumulated leave was exhausted, leave was unpaid. (Id.).
By email dated August 22, 2022, NJOLS announced that the COVID-19 testing policy would be lifted effective September 1, 2022. (ECF No. 36-2, Ex. 6). The reasons for the termination of the NJOLS policy were not citedlherein, however, the email notes that NJOLS “will continue to follow CDC guidelines on isolation, quarantine and exposure.” (Id.). In their moving brief, Defendants assert that the termination of the policies by all three branches of government was “due to the State's consistent application of the CDC's recommendations through common-sense public health interventions-including the vaccination and testing policies . .. (ECF No. 36-1 at 19).
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) challenges a federal court's subject matter jurisdiction. In deciding a Rule 12(b)(1) motion, the court must first determine “whether [it] presents a facial attack or a factual attack on the claim at issue, because that distinction determines how the pleading must be reviewed.” Const. Party of Pennsylvania v Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (internal quotation marks and citation omitted). A factual attack challenges the factual allegations underlying the complaint's assertion of jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges the sufficiency of the claim, and therefore, “the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” See Aichele, 757 F.3d at 358 (internal quotation marks and citation omitted). In that regard, a facial motion is handled like a Rule 12(b)(6) motion. See Leadbeater v. JP Morgan Chase, N.A, No. CV 16-7655 (JMV), ...
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