Valdez v. Grisham

559 F.Supp.3d 1161

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 September 13, 2021

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

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

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, United States District Judge

THIS MATTER comes before the Court on Plaintiffs’ Verified Class Action Complaint for Civil Rights Violations Under 42 U.S.C.A. § 1983 ; Violations of Rights Protected by the New Mexico Civil Rights Act; Emergency Request for a Temporary Restraining Order; Request for Preliminary Injunction, Permanent Injunctive Relief and Damages (the "Complaint") [Doc. 1]. The Court, having considered the Complaint and the relevant law, finds that Plaintiffs’ requests for a temporary restraining order and a preliminary injunction are not well-taken and will be denied.

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. 13 at 3. The ease and rapidity with which COVID-19 spreads and its potentially severe symptoms create a frightening potential for mass deaths and an overloaded healthcare system. Id. at 4. During the winter of 2020-21, the United States averaged nearly 200,000 new cases and 4,000 COVID-19-related deaths every day. Id. at 4-5. One in five New Mexicans who were hospitalized for COVID-19 passed away. Id. at 5.

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. Id. at 6. 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.

Three vaccine candidates emerged as frontrunners: Pfizer/BioNTech 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 EUA, 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. at 8.

Since the three vaccines received EUA status, over 368 million doses have been administered and over 173 million Americans have been fully vaccinated. Id. 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. Id. at 8-9. Further, the immunity provided by the vaccines is significantly more robust than natural immunity gained following infection. Id. at 9.

In late 2020, the "Delta" variant, a highly infectious and possibly more deadly strain of the coronavirus, appeared in India; by mid-June of 2021, the Centers for Disease Control and Prevention ("CDC") had labeled it a "variant of concern." Id. The Delta variant now accounts for virtually all new infections in the United States – including in New Mexico – and is believed to be twice as contagious as previous variants. Id. Studies indicate that individuals infected with the Delta variant are more likely to be hospitalized than those infected with other strains. Id. While the Delta variant is more likely to cause "breakthrough" infections than other variants, the vaccines still provide strong protection against serious illness and death in individuals who contract the Delta variant. Id. at 10.

Although case rates in New Mexico had begun to drop dramatically, the numbers rose rapidly with the rise of the Delta variant. Id. at 11. Back in June, there were approximately 60 new cases a day but by mid-August, there were nearly 900 new cases a day – a fifteenfold increase. Id. As a result, hospitals are again operating over their capacity to accommodate the surge of infected New Mexicans, the majority of whom are not vaccinated. Id.

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 "PHO"). Doc. 1-2. In relevant part, the PHO requires all "hospital workers ... to be fully vaccinated against COVID-19 unless they qualify for an exemption." Id. at 3-4. The 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 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." Doc. 1-2.

On August 19, 2021, Plaintiffs commenced the instant action. Named Plaintiff Jennifer Blackford is a registered nurse employed by Presbyterian. Doc. 1-3 ¶ 2. She asserts that the PHO "requires that [she] be terminated if [she] refuse[s] to be vaccinated for COVID-19," and that, based on her "medical training and her own independent research," she is "opposed to receiving the EUA covid vaccines." Id. ¶¶ 4-5. Named Plaintiff Talisha Valdez, on behalf of herself and her 11- and 12-year-old daughters, has contracted to exhibit their animals at the New Mexico State Fair. Doc. 1-4 ¶¶ 2, 6. She asserts that the PHO "prohibits [her] and [her] children from attending the New Mexico State Fair and showing their animals," and that she has chosen "not to be vaccinated" and "to refuse to have [her] child injected with an experimental EUA vaccine." Id. at ¶¶ 9, 12. Together, Plaintiffs allege that, unless this Court enters a temporary restraining order and preliminary injunction, under the PHO, "New Mexicans will be forced to take an experimental vaccine in order to retain their employment and will forever lose the ability to exhibit their unique animals at the New Mexico State Fair." Doc. 1 at 22. In their Complaint, Plaintiffs request "a temporary restraining order to prohibit Defendants from enforcing public health orders against the Plaintiffs and other putative class members that are similarly situated," and a preliminary injunction "to prohibit Defendants from enforcing public health orders in the arbitrary and capricious manner and fashion engaged by Defendants." Id. at 15.

In an Order entered on August 23, 2021, the Court denied Plaintiffs’ request for entry of an emergency order on an ex parte basis, explaining that Plaintiffs did not meet the requirements of Rule 65(b)(1) of the Federal Rules of Civil Procedure that would entitle them to a temporary restraining order "without written or oral notice to the adverse party or its attorney." Doc. 3. The Court, however, set an expedited briefing schedule on Plaintiffs’ request for preliminary relief. Id. Later that day, Plaintiffs filed a motion asking the Court to reconsider its decision. Doc. 4. In an Order entered on August 25, 20121, the Court denied Plaintiffs’ motion, explaining that Plaintiffs provided no basis for the Court to use its inherent authority to reconsider its decision to refrain from issuing an order enjoining enforcement of the PHO without providing Defendants with an opportunity to respond. Doc. 10. In accordance with the expedited briefing...