Supreme Court Denies Review In New York Vaccine Mandate Case

Last Thursday, the U.S. Supreme Court denied review in Dr. A v. Hochul, (Sup. Ct., certiorari denied 6/30/2022). This is another of the many cases that contend COVID vaccine mandates-- this time for New York healthcare workers-- with medical, but without religious, exemptions violate the Free Exercise clause. Justice Thomas, in an opinion joined by Justices Alito and Gorsuch, dissented from the denial of certiorari, saying in part:

[T]here remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and therefore trigger strict scrutiny. Meanwhile, the Second Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny. This split is widespread, entrenched, and worth addressing.

This case is an obvious vehicle for resolving that conflict.

The Supreme Court last December, by the same 6-3 vote, had denied an injunction pending the Supreme Court's review of the certiorari petition. (See prior posting.)

7th Circuit Denies Preliminary Injunction To Doctor Fired For Refusing Vaccine

In Halczenko v. Ascension Health, Inc., (7th Cir., June 23, 2022), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a pediatric critical care specialist who was fired from his hospital position after he refused, on religious grounds, to comply with the hospital's COVID vaccine mandate. The court concluded that plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. Among other things, the court rejected the argument that the doctor will suffer a deterioration in skills that amounts to irreparable injury.

Another Challenge To School District's Vaccine Mandate Fails

 Doe v. San Diego Unified School District, (SD CA, June 21. 2022), is another attempt by parents and students to challenge the school district's COVID vaccine mandate that does not provide for religious exemptions. The 9th Circuit last year ultimately upheld the school district's prior policy, and the Circuit denied en banc review. The court said in part:

Even Plaintiffs concede that substantively, the new COVID-19 vaccinate mandate is largely the same as before, with a new implementation timeline.... Plaintiffs’ new claims in the FAC are still premised on violations of the Free Exercise Clause, just as the claim in the original complaint was. Accordingly, the Court is bound by the law of this case.

Meat Processor Is Not State Actor In Requiring COVID Vaccination of Employees

In Reed v. Tyson Foods, Inc., (WD TN, June 14, 2022), a Tennessee federal district court dismissed plaintiffs' claims that their rights under RFRA and free exercise clause were violated when their employer required them to be vaccinated against COVID.  The court held that plaintiffs were not state actors, even though the President had invoked the Defense Production Act and instructed meat and poultry procession plants to continue operations.  The court said in part:

Plaintiffs contend that Defendant acted as an “agent of the government … by imposing strict worker vaccination rules to (in the estimation of the federal government), in order to preserve the integrity of the national food supply.”... However, no facts are pled that would enable the Court to find a sufficient nexus between Defendant’s vaccine policy and the involvement of the Government. The mere fact that Defendant relied on OSHA and CDC guidance in formulating its vaccine policy does not make Defendant an “agent of the government.” Nor does the fact that Defendant is subject to the federal government’s COVID-19 guidance for meat and poultry plants convert Defendant into a government actor.

The court also dismissed several other, but not all, of plaintiffs' additional claims.

COVID Testing Requirement Survives Free Exercise Challenge

In Villareal v. Rocky Knoll Health Care Center, (ED WI, June 1, 2022), a Wisconsin federal district court refused to allow a nurse who objected on religious grounds to a COVID testing requirement of a county-run nursing center to file an amended complaint.  The nurse's employment had been terminated her for refusing to comply with the center's testing policy. The court said in part:

Rocky Knoll’s COVID-19 testing policy is neutral. It does not refer to a religious practice.... Nor is its purpose to suppress “religion or religious conduct.”...

It is also generally applicable: Rocky Knoll’s policy does not prohibit religious conduct while permitting other conduct that may undermine its interest in preventing the spread of COVID-19 in its facility and ensuring the safety of its residents and employees....

The court also held that plaintiff cannot recover damages or obtain injunctive relief in federal court for a claim under the right of conscience provisions of the Wisconsin constitution.

7th Circuit Hears Oral Arguments On Reinstatement Of Doctor Who Refuses Vaccination On Religious Grounds

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Halczenko v. Ascension Health, Inc., (Docket No. 22-1040, 5/31/2022). In the case, an Indiana federal district court last December (full text of district court opinion) denied a preliminary injunction to a pediatric intensive care doctor who was denied a religious exemption from a hospital's COVID vaccination requirement and was placed on unpaid leave. The court held that plaintiff had not shown irreparable injury necessary to obtain an injunction.  Compensatory and other relief will be available if he ultimately prevails. Bloomberg Law reports on the oral arguments, saying in part:

One judge during oral argument ... homed in on the speculative nature of Paul Halczenko’s alleged irreparable harm from not getting rehired by Ascension St. Vincent Hospital right away—that not practicing medicine would cause his skills to atrophy and cost him his career.

Other members of the three-judge panel—all of whom were appointed by President Donald Trump—focused on apparent factual and legal shortcomings in the doctor’s bid for a preliminary injunction against Ascension Health Inc. and the hospital.

Class Action Filed To Challenge Air Force Vaccine Mandate

Another lawsuit has been filed by religious objectors challenging the military's COVID vaccine mandate.  Brought in a Texas federal district court by nine members of the Air Force as a class action on behalf of all Air Force members with religious objections to the COVID vaccine, the complaint (full text) in Spence v. Austin, (ND TX, filed 5/27/2022), alleges violations of plaintiffs' rights under the 1st Amendment and RFRA.  It alleges in part:

Defendants  have  mandated  that  all  members  of  the  Air  Force  receive  a COVID-19  vaccine,  or  be involuntarily  separated.  In theory, Defendants  offer medical, administrative,  and  religious  accommodations  to  that  mandate.  But  in  practice, only servicemembers with medical or administrative reasons for an exemption from the mandate are accommodated. Religious accommodation requests (“RARs”) are universally denied unless the requester is already imminently leaving the Air Force. 

First Liberty issued a press release announcing the filing of the lawsuit. 

Washington's State Employee Vaccine Mandate Upheld

In Pilz v. Inslee, (WD WA, May 27, 2022), a Washington federal district court upheld a Proclamation by Washington's governor that requires health care, education, and state-agency workers to be vaccinated against COVID.  Among other challenges in a suit brought by 100 state employees, plaintiffs claim the Proclamation infringes on religious beliefs that conflict with vaccination in violation of the Free Exercise clause. The court said in part:

[T]he Proclamation is in no way directed at any religious exercise and, at most, has an incidental impact on some state employees with particular religious beliefs. Therefore, the Court finds that the Proclamation is neutral and generally applicable. The Proclamation is accordingly subject to rational basis review and must be upheld if it is “rationally related to a legitimate governmental purpose.”

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell.  In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Preliminary Injunction Denied To Navy SEAL With Religious Objection To COVID Vaccines

 In Navy SEAL 1 v. Austin, (D DC, April 29, 2022), a DC federal district court refused to grant a preliminary injunction to bar discharge or other adverse action against a Navy SEAL who refuses for religious reasons to comply with the military's COVID-19 vaccine mandate.  The court said that plaintiff does not face imminent discharge because another federal district court has issued a class-wide injunction against that. As to other adverse action, the court said in part:

As currently pled, there are a plethora of weaknesses in Plaintiff’s claims that counsel against preliminary relief. First, there appears to be a serious question as to whether Plaintiff’s claims are justiciable, because they require the Court both to evaluate the merits of military expertise and to weigh technical issues of public health and immunology based on novel science that remains unfixed as the current COVID-19 pandemic turns endemic. Second, the Court is concerned that the record as it currently stands does not properly resolve whether mandatory vaccination is the least restrictive means as to Plaintiff to accomplish the Government’s interest in force readiness and national security more broadly. That fault permeates Plaintiff’s RFRA claim, Free Exercise claim, and Equal Protection claim. Taken together, the Court concludes these issues militate against preliminary relief at this early stage of the case.

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.

Marine With Religious Objections To COVID Vaccine Is Denied Preliminary Injunction

In Short v. Berger, (D AZ, April 22, 2022), an Arizona federal district court refused to grant a preliminary injunction to a Marine Corps major who was denied a religious exemption from the military's COVID vaccine mandate.  Plaintiff is serving as a staff judge advocate.  According to the court:

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions.

The court went on:

In his motion for preliminary injunction, Major Short conspicuously does not assert that separation, loss of training and promotion opportunities, loss of pay, and/or a less-than-honorable discharge constitute irreparable injuries.... Instead, the sole theory of irreparable harm articulated in Major Short’s motion is that “being forced to choose between receiving the injection contrary to his religious beliefs, or defying an order, is itself a denial of free exercise, and directly causes irreparable harm.” ... [T]he tangible employment-related harms that Major Short may suffer ... do not qualify as irreparable under Ninth Circuit law because they can be remedied through retrospective relief....  

As for Major Short’s coercion theory, the Court acknowledges that, in many of the recent military vaccine challenges arising outside the Ninth Circuit, courts have suggested that a service member suffers an irreparable injury the moment he is forced to choose between following his religious beliefs and following an order to be vaccinated.... But however persuasive those cases might otherwise be, this Court must follow Ninth Circuit law and the Ninth Circuit has not adopted—and, indeed, appears to have rejected—this theory of irreparable harm....

The court also concluded that beyond the irreparable injury issue, there was uncertainty as to whether Plaintiff would succeed on his RFRA claim.

Company Is Not "State Actor" When It Complies With Federal Vaccine Mandate

In Ciraci v. J. M. Smucker Co., (ND OH, April 20, 2022), an Ohio federal district court dismissed a suit by employees of a food manufacturer who claim that their 1st Amendment free exercise rights were infringed when their employer denied them religious exemptions and required them to comply with the Presidential Executive Order mandating COVID vaccinations for employees of federal contractors. The court said in part:

For Plaintiffs to succeed on their Free Exercise Clause ... claim, they need to establish first that Smucker is a state actor.... 

A private entity is not subject to constitutional constraints except in a few limited circumstances, for example: (1) “when the private entity performs a traditional, exclusive public function;” (2) “when the government compels the private entity to take a particular action;” (3) “when the government acts jointly with the private entity.”...

Here, Plaintiffs allege that Defendant is a federal actor because it acted pursuant to “policies, practices, customs, and procedures created, adopted, and enforced under color of federal law.” Without more facts, this allegation is conclusory and does not plead enough facts to place it in any of the exceptions listed above.

Baseball Team Scout Sues For Religious Exemption From Team's COVID Vaccine Mandate

Yesterday suit was filed in a D.C. federal district court by a scout for the Washington Nationals baseball team who was denied an accommodation for his religious objections to the baseball club's COVID vaccine mandate. The complaint (full text) in Gallo v. Washington Nationals Baseball Club, LLC, (D DC, filed 4/20/2022), claims discrimination on the basis of religion and disability. Thomas More Society issued a press release announcing the filing of the lawsuit.

Supreme Court Refuses Interim Relief In Airman's Religious Challenge To COVID Vaccine Mandate

Yesterday, the U.S. Supreme Court by a vote of 6-3 refused to grant an injunction pending appeal in Dunn v. Austin, (Docket No. 21A599, April 18, 2022). Justices Thomas, Alito and Gorsuch would have granted relief. At issue was a suit by an Air Force Reserve officer who has religious objections to the COVID vaccine. His request for a religious exemption from the military's vaccine mandate was denied. The history is explained in the officer's Emergency Application for Injunction Pending Appeal:

[T]he district court denied a preliminary injunction and an injunction pending appeal. While the motion for a preliminary injunction was pending, respondents removed applicant from his command; he does not seek reinstatement to that post, but seeks only protection against further punishment, including a discharge, because of his religious beliefs. After entering interim relief, the United States Court of Appeals for the Ninth Circuit denied an injunction pending appeal in a one-page order over a dissent by Judge Bade.

(Full text of district court's ruling and the 9th Circuit's decision.) New York Times reports on the Supreme Court's ruling.

Another Court Gives Relief To Military Objectors To COVID Vaccine

Last week, an Ohio federal district court became the latest to grant a preliminary injunction to members of the military who have religious objections to the military's COVID vaccine mandate. In Doster v. Kendall, (SD OH, March 31, 2022), the court said in part:

The Court finds the targeted relief Plaintiffs now seek is "a prohibition against disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court grants a preliminary injunction of such scope, enjoining Defendants from taking any adverse or punitive action, including but not limited to disciplinary or separation measures, against the Plaintiffs in this case for their refusal to receive the COVID-19 vaccine, while keeping in place the current temporary exemption. 

The Court's conclusion is not affected by the Supreme Court's recent decision in Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which cautions against intervention in the military' s chain of command. That case is distinguishable from the present one, and this Court's injunction. As set forth below, the injunction in this case is limited to solely these Plaintiffs and only maintains the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine. It does not affect the Air Force's ability to make operational decisions, including deployability decisions.

Liberty Counsel issued a press release announcing the decision.