Steven Church v. Biden

STEVEN CHURCH, et al., Plaintiffs, v. JOSEPH R. BIDEN, in his official capacity as President of the United States, et al., Defendants.

Civil Action No. 21-2815 (CKK)

United States District Court, District of Columbia

May 11, 2022

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

The plaintiffs in this case include eighteen federal civilian employees (“Federal Employee Plaintiffs”)^[1] and two active-duty Marines (“Service Member Plaintiffs”)^[2] (collectively “Plaintiffs”). By virtue of their federal civilian and military employment, Plaintiffs are subject to the COVID-19 vaccine mandates imposed under Executive Order 14043 and Secretary of Defense Lloyd Austin's August 24 2021 order for the vaccination of military personnel. Plaintiffs claim that the vaccination requirements imposed by these orders infringe on their religious freedoms under the First Amendment and the Religious Freedom Restoration Act (“RFRA”).^[3]

Pending before the Court is Defendants' [23] Motion to Dismiss. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, ^[4] the Court concludes that it lacks jurisdiction over the Federal Employee Plaintiffs' remaining claims and therefore GRANTS IN PART Defendants' [23] Motion to Dismiss and DISMISSES this case without prejudice as to the Federal Employee Plaintiffs. The Court shall HOLD IN ABEYANCE Defendants' [23] Motion to Dismiss as to the Service Member Plaintiffs, and shall address those claims in a separate Memorandum Opinion.

I. BACKGROUND

A. COVID-19 Pandemic & Vaccine Development

Coronavirus disease (“COVID-19”) is an infectious disease caused by the SARS-CoV-2 virus.^[5] Spread principally by “exposure to respiratory fluids, ” the “initial presentation of a [COVID-19] infection ranges from no symptoms at all (asymptomatic) to severe illness and death; and even after recovery, various long-term health problems may linger.” Klaasen v. Trustees of Ind. Univ., ___ F.Supp.3d ___, 2021 WL 3073926, at *2 (N.D. Ind. July 18, 2021) (internal citations omitted).^[6] To date, approximately 46 million cases of COVID-19 have been reported in the United States; the disease has claimed the lives of more than 995, 000 Americans.^[7]

As another federal district court summarized, “COVID-19 caught the world unaware. Initially, there were no vaccines or treatments[.]” Klaassen, 2021 WL 3073926, at *8. Shortly after then-President Donald J. Trump declared a national emergency on March 13, 2020, see 85 Fed.Reg. 15, 337 (Mar. 13, 2020), the Secretary of the U.S. Department of Health and Human Services (“HHS”) determined that “circumstances exist justifying the authorization of emergency use of drugs and biological products during the COVID-19 pandemic, ” see 85 Fed.Reg. 18, 250, 18, 250-51 (Apr. 1, 2020). In such circumstances, the U.S. Food and Drug Administration (“FDA”) may issue an “emergency use authorization” (“EUA”) for FDA-regulated products “intended for use” in responding to the emergency before such products receive FDA “approval.” See 21 U.S.C. § 360bbb-3(a)(1). In October 2020, the FDA issued guidance to vaccine developers, “outlining [the FDA's] expectations for vaccine sponsors, ” including the “scientific data and information” that would be required to obtain an EUA.^[8]

In late 2020 and early 2021, the FDA issued EUAs for COVID-19 vaccines developed by three companies-Pfizer BioNTech, Moderna, and Johnson & Johnson.^[9] On August 23, 2021, the FDA approved the vaccine created by Pfizer BioNTech, which would be marketed as “Comirnaty, ” for “the prevention of COVID-19 disease in individuals 16 years of age and older.”^[10] On January 31, 2022, Moderna's vaccine obtained FDA approval for its intended use by individuals aged 18 years and older.^[11] B. Executive Order 14043

On September 9, 2021, President Joseph R. Biden issued Executive Order 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. See Exec. Order 14043, 86 Fed.Reg. 50, 989 (Sept. 9, 2021) (hereinafter “Executive Order 14043”). Noting that “COVID-19 vaccines are widely available in the United States, ” Executive Order 14043 concludes that it is “essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public. The [Centers for Disease Control (“CDC”)] has found that the best way to do so is to be vaccinated.” Id. § 1. Accordingly, “[e]ach agency” is instructed to “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” Id. § 2.

Executive Order 14043 directs the Safer Federal Workforce Task Force (“Task Force”)^[12]to “issue guidance within 7 days . . . on agency implementation of this requirement for all agencies covered by this order.” Id. The resulting guidance directed that “[f]ederal employees need to be fully vaccinated by November 22, 2021.” See Safer Federal Workforce, FAQs, Vaccinations, https://www.saferfederalworkforce.gov/faq/vaccinations/ (“Task Force Vaccine Guidance”) (last visited May 11, 2022). Federal employees are “considered fully vaccinated for COVID-19 2 weeks after they have received the requisite number of doses of a COVID-19 vaccine, ” meaning that federal employees must receive their “last dose of the vaccine by no later than November 8, 2021 to meet the November 22, 2021 deadline to be fully vaccinated.”^[13] Id. Employees who fail to comply with this deadline and “have neither received an exception nor have an exception request under consideration” are “subject to discipline, up to and including termination or removal.” Id.

The Task Force Vaccine Guidance recognizes that certain federal employees may be eligible for an exception to the vaccine requirement in “limited circumstances” in which “the law requires an exception”:

[A]n agency may be required to provide a reasonable accommodation to employees who communicate to the agency that they are not vaccinated against COVID-19 because of a disability or because of a sincerely held religious belief, practice, or observance. Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee's job responsibilities; and the reasonably foreseeable effects on the agency's operations, including protecting other agency employees and the public from COVID-19. Because such assessments will be fact- and context-dependent, agencies are encouraged to consult their offices of general counsel with questions related to assessing and implementing any such requested accommodations.

Id.^[14] The Guidance directs agencies to set a date by which employees can request exceptions, but also allows employees to “submit requests for an exception after the date established by the agency.” Id.

Defendants note that an employee “who requests an exception will not be subject to discipline while the request is under consideration.” Defs.' Mot. at 4; see also Task Force Vaccine Guidance (“Agencies may initiate the enforcement process as soon as November 9, 2021, for employees who fail to submit documentation to show that they have completed receiving required vaccination dose(s) by November 8, as long as those employees have not received an exception and the agency is not considering an exception request from the employee.” (emphasis added)). If an employee's request for a religious exception is denied, then the employee must receive “their first (or, if a one-dose series, only), dose within two weeks of the final determination to deny the accommodation.” Task Force Vaccine Guidance.

Although another federal district court previously granted a nationwide preliminary injunction prohibiting the government from “implementing or enforcing” Executive Order 14043, Defs.' Mot. at 4 (citing Feds for Med. Freedom v. Biden, ___ F.Supp.3d ___, 2022 WL 188329, at *8 (S.D. Tex. Jan. 21, 2022)), the U.S. Court of Appeals for the Fifth Circuit has since directed that the injunction be vacated, see Feds for Med. Freedom v. Biden, 30 F.4th 503, 511 (5th Cir. 2022).^[15] The Task Force has advised that during the pendency of the nationwide preliminary injunction, agencies should not “process requests that they have already received for . . . religious exceptions to the COVID-19 vaccination requirement pursuant to E.O. 14043, ” and that they should “notify employees with pending exception requests . . . that an exception therefore is not necessary so long as the nationwide injunction is in place.” Safer Federal Workforce Task Force, Frequently Asked Questions Related to Compliance with the Applicable Preliminary Nationwide Injunction on Implementation and Enforcement of the Vaccination Requirement Pursuant to [EO] 14043 at 2 (Jan. 24, 2022), https://www.saferfederalworkforce.gov/downloads/FAQs_compliance_injunction_EO%2014043_20220124.pdf. C. Plaintiffs' Factual Background^[16]

The Federal Employee Plaintiffs are eighteen civilian employees of various executive agencies. See Compl. ¶¶ 5-22. Each Federal Employee Plaintiff alleges that he or she submitted a request for a religious exception to the mandatory vaccination provision of Executive Order 14043 on the basis that he or she is a “devout Christian who cannot in morality receive the vaccine without compromising [his or her] closely held religious beliefs.”^[17] Id. ¶¶ 5-22, 60-77.

Since the Complaint was filed, Plaintiff Kristofor Hallfrisch began employment with the Department of Interior (having previously been employed by the Department of State), where he was granted an “interim accommodation” while his exemption request remains under review. Defs.' Mot. Ex 5, ...