Rydie v. Biden

572 F.Supp.3d 153

Israel RYDIE, et al.

v.Joseph R. BIDEN, in his official capacity as President of the United States, et al.

Civil Action No. DKC 21-2696

United States District Court, D. Maryland.

Filed November 19, 2021

Jonathan Bernard Bolls, Alexandria, VA, for Israel Rydie, Elizabeth Fleming.

Joseph John DeMott, Kenzie K. Overing, U.S. Department of Justice, Washington, DC, for Joseph R. Biden, Xavier Becerra, Lloyd J. Austin, III.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

This is one of a growing number of cases challenging various aspects of the federal employee COVID-19 vaccination requirements. Currently pending and ready for resolution is Plaintiffs’ motion for a preliminary injunction. (ECF No. 7).¹ The issues have been fully briefed, (ECF Nos. 21; 23), and a hearing was held on November 18, 2021. For the following reasons, Plaintiffs’ motion will be denied.

I. Background

On September 9, 2021, President Biden issued Executive Order 14,043 requiring that all federal government employees be vaccinated against COVID-19, with exceptions as required by law. (ECF No. 13-1, at 24 (Exhibit A)).² The President determined that this policy was necessary because COVID-19 threatens "[t]he health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, [which] are foundational to the efficiency of the civil service." (Id. ). Subsequently announced guidance requires employees to be fully vaccinated by November 22. (Id. , at 27 (Exhibit B)). Employees were required to provide documentation that they received a one-dose vaccine or the second dose of a two-dose vaccine by November 8, 2021. (Id. , at 31, 35-36 (Exhibit B)).

The requirement is not being enforced immediately and is applied consistent with different escalating enforcement processes at each federal agency. (ECF No. 13-1, at 35-36). Agencies are encouraged to initiate the process with education and counseling and progress to a suspension of up to fourteen days before taking the ultimate step of proposed termination. (Id. ). Agencies can adopt their own timelines and make adjustments for individual employees but cannot except anyone from the requirement unless required by law. (Id. ).

Plaintiffs are civilian federal employees subject to the vaccine requirement. One works at the Defense Information Systems Agency ("DISA") and the other works at the Food and Drug Administration ("FDA"). (ECF No. 13-1, ¶¶ 16, 20). They claim that they will be fired imminently because they will refuse to report their vaccination status. (Id. , ¶¶ 18-19, 22-23). They have not applied for exceptions and do not intend to do so. (ECF No. 23, at 6). During an unrecorded teleconference on October 29 and at the November 18 hearing, counsel for Defendants indicated that DISA and the FDA would not finalize any proposed termination before January 2022.

II. Analysis

Plaintiffs request a nationwide preliminary injunction prohibiting Defendants from collecting or retaining information about vaccination status and from making vaccination a condition of employment. They argue that, in adopting such practices, the Defendants violate: (1) federalism principles,³ (2) separation of powers principles, (3) the right to due process, and (4) the individual rights to bodily integrity and privacy. (ECF No. 7, at 3-20). They claim that they will be fired for refusing to report their vaccination status, and that their reputations and future employment opportunities will be harmed because they will receive a "mark of misconduct on [their] Official Personnel File[s.]" (Id. , at 20-21; see also ECF No. 13-1, at 12-14). They may also claim that they are currently harmed by the change in their conditions of employment.⁴

Preliminary injunctions are "extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy Inc. v. Motorola, Inc. , 245 F.3d 335, 339 (4th Cir. 2001) (quotation omitted). The Supreme Court has held that the party seeking a preliminary injunction must demonstrate that: (1) the party is likely to succeed on the merits "by a clear showing"; (2) the party is likely to suffer irreparable harm, also by a "clear showing," in the absence of preliminary relief; (3) the balance of equities tips in the party's favor; and (4) preliminary injunctive relief is in the public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 345–47 (4th Cir. 2009), vacated on other grounds , 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (Mem) (2010). Where the government is the defendant, courts analyze the third and fourth factors together. Roe v. Dep't of Def. , 947 F.3d 207, 230 (4th Cir. 2020) (citing Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ). None of the factors are satisfied here.

A. Likelihood of Success on the Merits

Plaintiffs have not shown that they are likely to succeed. It may well be that this court lacks the authority to adjudicate their case or to order some of the requested relief. Even if it can adjudicate the case, Plaintiffs have not shown that they are likely to prevail on any of their constitutional arguments.

1. Federal Court Authority

a) Subject Matter Jurisdiction

Federal district courts generally have original jurisdiction over civil actions requesting equitable relief that arise " ‘under the Constitution, laws, or treaties of the United States.’ " See Bennett v. SEC , 844 F.3d 174, 178 (4th Cir. 2016) (quoting 28 U.S.C. § 1331 ). But Congress can "impliedly preclude jurisdiction by creating a statutory scheme of administrative adjudication and delayed judicial review in a particular court." Id. (citations omitted).

Under the Civil Service Reform Act ("CSRA"), federal employees can appeal certain serious adverse employment actions directly to the Merit Systems Protection Board ("MSPB") and the Federal Circuit. See 5 U.S.C. §§ 7513(d) ; 7703(b)-(c). Those adverse actions include termination. 5 U.S.C. § 7512. In Elgin v. Department of Treasury , the Supreme Court held that "the CSRA provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that [it] is unconstitutional." 567 U.S. 1, 5, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012). To the extent Plaintiffs challenge their future terminations, they likely have to proceed through the CSRA process, even though they assert constitutional challenges. Plaintiffs also raise their future receipt of a mark of misconduct and possibly the current change in their "conditions" of employment. These claims share the same underlying facts and therefore likely "fall under the [same] umbrella" for CSRA purposes. See Lim v. United States , No. 10-cv-2574-DKC, 2011 WL 2650889, at *6 (D. Md. July 5, 2011) ; see also Elgin , 567 U.S. at 22, 132 S.Ct. 2126.

In any case, employees can challenge less severe actions that violate "prohibited personnel practices," including constitutional violations, by filing a complaint with the Office of Special Counsel ("OSC"). 5 U.S.C. §§ 1214(a)(1)(A) ; 2302(a)(2)(A); 2302(b)(12); see also id. § 2301(b)(2); Weaver v. U.S. Info. Agency , 87 F.3d 1429, 1432-33 (D.C. Cir. 1996). If the OSC determines that the practice was improper, it can recommend changes to the agency and then petition the MSPB to order corrective action. 5 U.S.C. § 1214(b)(2)(B)-(C). If the MSPB denies the petition, harmed employees can appeal to the Federal Circuit. Id. §§ 1214(c) ; 7703(b)-(c). The Fourth Circuit held in an unpublished opinion that formal reprimands can be challenged this way, that the OSC process is part of the comprehensive CSRA scheme, and that it precludes district court jurisdiction (unless an employee were not allowed to appeal a constitutional challenge to the Federal Circuit). Fleming v. Spencer , 718 F.App'x 185, 186, 188 & 188 n.2 (4th Cir. 2018) ; see also NASA v. Nelson , 562 U.S. 134, 149, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) ("[I]f every employment decision became a constitutional matter, the Government could not function." (cleaned up)). Plaintiffs do not argue that they attempted to exhaust this process, that Fleming does not apply, or that it was wrongly decided.

It is Plaintiffs’ burden to establish subject matter jurisdiction, and their showing is questionable at best.

b) Equitable Power

Even if Plaintiffs can bring suit in this court now, they cannot obtain the relief they seek against President Biden. Federal courts are generally without power to enjoin the President. Franklin v. Massachusetts , 505 U.S. 788, 802–03, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ; Int'l Refugee Assistance Project v. Trump , 857 F.3d 554, 605 (4th Cir.), vacated on other grounds , ––– U.S. ––––, 138 S.Ct. 353, 199 L.Ed.2d 203 (Mem) (2017). As a result, Plaintiffs can only request injunctions specific to Secretaries Austin and Becerra and the Departments they lead. Those requests for preliminary injunctive relief also fail for the reasons discussed below.

2. Federalism and Separation of Powers

Plaintiffs’ federalism and separation of powers arguments are insubstantial because the executive branch has wide authority to establish and enforce requirements of employment within the federal government. "Time and again [the Supreme Court has] recognized that the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." Nelson , 562 U.S. at 148, 131 S.Ct. 746 (quotation omitted). Plaintiffs argue that states’ retention of power over public health prohibits the federal government from acting in that sphere. Plaintiffs are wrong. The federal government's exercise of its enumerated powers does not infringe on powers reserved to the states under the Tenth Amendment. Hodel v. Va. Surface Mining & Reclamation Ass'n , 452 U.S. 264,...