Valdez v. Grisham

676 F.Supp.3d 1021

Talisha VALDEZ, on behalf of herself and others similarly situated,and Jennifer Blackford, on behalf of herself and others similarly situated, Plaintiffs, v. Michelle Lujan GRISHAM, Officially and Individually,Acting Under the Color of Law, and David Scrase,Officially and Individually, Acting Under the Color of Law, Defendants.

Case No. 21-cv-783 MV/JHR

United States District Court, D. New Mexico

Signed August 19, 2022

Jared Robert Vander Dussen, A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, NM, for Plaintiffs.

Holly Agajanian, Kyle P. Duffy, Maria S. Dudley, Office of the Governor Michelle Lujan Grisham, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, Senior United States District Judge

THIS MATTER comes before the Court on Motion to Dismiss Plaintiffs' Verified Complaint [Doc. 17]. The Court, having considered the Motions and the relevant law, finds that the Motion is well-taken and will be granted.

BACKGROUND

Since its emergence last year, the novel coronavirus 2019, or Sars-CoV-2, the virus that causes COVID-19, has spread exponentially through the world, and New Mexico has been no exception. Doc. 17 at 3. Governor Michelle Lujan Grisham first declared the existence of a Public Health Emergency in New Mexico in March 2020, when COVID-19 reached our State, and has since renewed that declaration. See July 15, 2022 Public Health Order ("July 2022 PHO"), https://cv.nmhealth.org/public-health-orders-and-executive-orders/ (hereinafter referred to as "NM Health Website"). As of July 15, 2022, over 88.7 million people have been infected with COVID-19 in the United States, with over 1,017,000 related deaths, and the New Mexico Department of Health ("DOH") has reported over 575,000 positive COVID-19 cases and 8,000 related deaths in New Mexico. See July 2022 PHO.

Efforts to develop and distribute a vaccine against COVID-19 were swift. In February 2020, the United States Department of Health and Human Services ("HHS") declared a public emergency and instructed the United States Food and Drug Administration ("FDA") to grant emergency use authorizations ("EUA") for "medical devices and interventions" to combat the pandemic, including vaccines. Doc. 17 at 5. The FDA issued detailed guidance to vaccine manufacturers, requiring a determination that the vaccine's benefits outweigh its risks based on data from at least one well-designed Phase 3 clinical trial that demonstrates the vaccine's safety and efficacy in a clear and compelling manner. Id. at 6.

Three vaccine candidates emerged as frontrunners: Pfizer/BioNTech ("Pfizer") and Moderna's two-dose mRNA vaccines, and Johnson & Johnson's ("J&J") single-dose viral vector vaccine. Id. By the time Pfizer, Moderna, and J&J applied for EUA status (which, for Pfizer and Moderna, was in November 2020, and for J&J, was in February 2021), each vaccine had undergone significant testing. Id. at 6-7. After a team of representatives from across the FDA reviewed the data submitted by each manufacturer and independently assessed the risks and benefits of the vaccines, the FDA granted EUAs, for individuals 16 and older, to Pfizer and Moderna's vaccines in December 2020 and to J&J's vaccine in February 2021, noting that each had met the expectations set out in the FDA's comprehensive guidance. Id. at 7. Pfizer's vaccine later received EUA for individuals 12 and older, and on August 23, 2021, received full FDA approval for individuals 16 and older. Id. As of July 2022, the FDA has extended the EUAs granted to the Moderna and Pfizer vaccines to include children down to six months of age, has authorized booster shots for individuals 5 years and older, has authorized second booster shots for older people and certain immunocompromised individuals, and has granted full approval to the Pfizer vaccine for individuals 12 years of age and older. See FDA News Releases, https://www.fda.gov/news-events/.

Since the three vaccines originally received EUA status, over 601 million doses have been administered and over 20.2 million Americans have been fully vaccinated. COVID-19 Vaccinations in the United States, CDC, https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-people-additional-dose-totalpop. Comprehensive data collected since the three vaccines received EUA status demonstrates that they are safe and highly effective in preventing infection and severe illness, and that serious adverse side effects from the vaccines are exceedingly rare. Doc. 17 at 8-9. Further, the immunity provided by the vaccines is significantly more robust than natural immunity gained following infection. Id.

With the first EUAs for covid vaccines, "New Mexico put into motion one of the most efficient vaccine rollouts in the United States." Simon Romero, How New Mexico Became the State with the Highest Rate of Full Vaccinations, The New York Times (Apr. 14, 2021), https://www.nytimes.com/2021/04/14/us/new-mexico-covid-vaccines.html. "Going into the pandemic with a dearth of financial resources compared with richer states, and vulnerabilities like having fewer hospital beds per capita than nearly every other state, the authorities in New Mexico saw the vaccine as their most powerful weapon to stave off an even more harrowing crisis." Id. By April 2021, New Mexico had reached the second highest vaccination rate in the United States. Id.

As the number of vaccinated New Mexicans grew and scientific studies showed that the vaccines were safe and effective in preventing severe illness, Governor Lujan Grisham and the DOH began to lift restrictions on businesses and travel into the state, and to shift pandemic mitigation strategies toward vaccine and mask mandates. Quickly following the reopening of New Mexico, however, the "highly transmissible" Delta variant emerged, soon accounted for virtually all new infections, and caused a "significant increase in new COVID-19 cases." Doc. 1-2. While the Delta variant was found to be more likely to cause "breakthrough" infections than other variants, the vaccines still provided strong protection against serious illness and death in individuals who contracted the Delta variant. Doc. 17 at 9.

To stem the tide of new cases and ease the pressure on our hospitals, on August 17, 2021, New Mexico Department of Health Acting Secretary David R. Scrase, M.D., issued "Public Health Emergency Order Requiring All School Workers Comply with Certain Health Requirements and Requiring Congregate Care Facility Workers, Hospital Workers, and Employees of the Office of the Governor Be Fully Vaccinated" (the "August 2021 PHO"). Doc. 1-2. In relevant part, the August 2021 PHO requires all "hospital workers . . . to be fully vaccinated against COVID-19 unless they qualify for an exemption." Id. at 3-4. The August 2021 PHO also requires that "[a]ll persons who are eligible to receive a COVID-19 vaccine and enter the grounds of the New Mexico State Fair . . . provide adequate proof of being fully vaccinated against COVID-19 . . . unless the individual qualifies for an exemption." Id. at 5. Both hospital workers and individuals who seek entry into the State Fair "may be exempt from the COVID-19 vaccination requirement . . . if they have a qualifying medical condition which immunization would endanger their health, or they are entitled . . . to a disability-related reasonable accommodation or a sincerely held religious belief accommodation." Id. at 4, 5-6. A religious belief exemption may be supported by "a statement regarding the manner in which the administration of a COVID-19 vaccine conflicts with the religious observance, practice, or belief of the individual." Id. at 4-5, 6. The August 2021 PHO specifically indicates that the vaccine requirements set forth therein are based on the following scientific and medical evidence: "the currently available COVID-19 vaccines are safe and the most effective way of preventing infection, serious illness, and death"; "widespread vaccination protects New Mexico's health care system as vaccines decrease the need for emergency services and hospitalization"; and "the refusal to receive the COVID-19 vaccine not only endangers the individual but the entire community, and further jeopardizes the progress the State has made against the pandemic by allowing the virus to transmit more freely and mutate into more transmissible or deadly variants." Id.

While New Mexico was still experiencing a "significant increase in new COVID-19 cases" as a result of the Delta variant, the CDC identified yet another new variant of concern, "Omicron." NMDOH Press Release (Dec. 13, 2021), https://cv.nmhealth.org/2021/12/13/state-identifies-first-omicron-covid-19-case/. On December 13, 2021, the DOH announced its first identified case of the Omicron variant in New Mexico. Id. With the prevalence of the Omicron variants, the CDC advises that "COVID-19 vaccines remain the best public health measure to protect people from COVID-19 and reduce the likelihood of new variants emerging." What You Need to Know, CDC, https://www.cdc.gov/coronavirus/2019-ncov/variants/omicron-variant.html?s_cid=11734:omicron%20vaccine%20efficacy:sem.ga:p:RG:GM:gen:PTN:FY22. Further, the CDC indicates that "[c]urrent vaccines protect against severe illness, hospitalizations, and deaths due to infection with the Omicron variant," and that "[p]eople who are up to date with their COVID-19 vaccines and get COVID-19 are less likely to develop serious illness than those who are unvaccinated and get COVID-19." Id. In the face of the newly discovered Omicron variant, Governor Lujan Grisham and the DOH issued a public health order mandating that certain individuals, again including health care and congregate care workers, receive booster vaccines. See December 2, 2021 Public Health Order, NM Health Website.

On August 19, 2021, Plaintiffs commenced the instant action by filing their Verified Class Action Complaint for Civil Rights Violations under 42...