Williams v. Brown

567 F.Supp.3d 1213

Joshua WILLIAMS; Jennifer Lewis; Michael Miller ; Phillip Kearney ; Jay Hicks; Janna Cochran; Julie Ann Suderman, Plaintiffs,

v.Kate BROWN; Patrick Allen; Oregon Health Authority, Defendants.

Civ. No. 6:21-cv-01332-AA

United States District Court, D. Oregon, Eugene Division.

Signed October 19, 2021

Rebekah C. Millard, Freedom Foundation, Olympia, WA, for Plaintiffs Joshua Williams, Jennifer Lewis, Michael Miller, Phillip Kearney, Jay Hicks, Janna Cochran, Julie Ann Suderman.

Marc Abrams, Christina L. Beatty-Walters, Oregon Department of Justice, Portland, OR, for Defendants Kate Brown, Patrick Allen.

Christina L. Beatty-Walters, Oregon Department of Justice, Portland, OR, for Defendant Oregon Health Authority.

OPINION & ORDER

AIKEN, District Judge.

This case comes before the Court on Plaintiffs' Emergency Motion for Temporary Restraining Order. ECF No. 11. The Court heard oral argument on October 18, 2021 by telephone. ECF No. 19. For the reasons set forth below, the motion is DENIED.

LEGAL STANDARD

"In deciding whether to grant a motion for a temporary restraining order ("TRO"), courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction." Pacific Kidney & Hypertension, LLC v. Kassakian , 156 F. Supp.3d 1219, 1222 (D. Or. 2016). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction must show (1) that he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his or her favor; and (4) an injunction is in the public interest. Id. at 20, 129 S.Ct. 365.

In the Ninth Circuit, courts may apply an alternative "serious questions" test, which allows for a preliminary injunction where a plaintiff shows that "serious questions going to the merits" were raised and the balance of hardships tips sharply in plaintiff's favor, assuming the other two elements of the Winter test are met. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). This formulation applies a sliding scale approach where a stronger showing of one element may offset a weaker showing in another element. Id. at 1131. Nevertheless, the party requesting a preliminary injunction must carry its burden of persuasion by a "clear showing" of the four elements set forth above. Lopez v. Brewer , 680 F.3d 1068, 1072 (9th Cir. 2012).

BACKROUND

I. COVID-19 and the Vaccines

COVID-19 is an infectious disease caused by the virus SARS CoV-2. Sutton Decl. ¶ 4.¹ ECF No. 14. COVID-19 is highly transmissible, primarily through respiratory droplet transmission. Id. at ¶¶ 4-6. The virus also mutates as it replicates and produces variants which "may have characteristics of public health consequence, such as evidence of increased transmissibility, evidence of increased disease severity, and reduced effectiveness of diagnostics, treatments, or vaccines." Id. at ¶ 7.

In June 2021, the Delta variant of the COVID-19 virus emerged as a "variant of concern" and is approximately twice as contagious as earlier variants of the virus. Sutton Decl. ¶ 7. As of October 7, 2021, the U.S. Centers for Disease Control and Prevention ("CDC") have confirmed more than 43.9 million cases of COVID-19 in the United States, and 707,065 people have died of COVID-19. Id. at ¶ 9. In Oregon, the CDC reports that there have been 338,130 cases of COVID-19 and 3,900 Oregonians have died of the disease as of October 6, 2021. Id. The number of COVID-19 cases peaked in Oregon in August and September of 2021 with more than 1,178 Oregonians hospitalized with COVID-19 on September 1, 2021. Id. at ¶¶ 8-10. "This represented a more than two-fold increase over the previous peak of 584 on November 30, 2020." Id. at ¶ 10.

The surge in COVID-19 cases put enormous pressure on Oregon's medical resources and infrastructure. "Caring for this large number of patients with COVID-19 along with other patients presenting for care has strained the ability of hospitals to provide care for everyone, forcing most to postpone non-urgent care, and leaving many people in Oregon suffering as they wait for non-urgent procedures, such as hip transplants." Sutton Decl. ¶ 10. Aside from the risk of death, "[i]ndividuals who contract COVID-19 may suffer prolonged illness with severe complications, such as heart attack, stroke, blood clots and respiratory failure as well as long-term post-COVID conditions." Id. at ¶ 20.

"Vaccination remains the most effective tool to reduce the spread of COVID-19." Sutton Decl. ¶ 13. "There are currently three safe and highly effective vaccinations available for use in the United States from Pfizer BioNTech, Moderna and Johnson & Johnson/Janssen." Id. at ¶ 11. The Pfizer vaccine was granted official approval by the FDA on August 23, 2021, and the Moderna and Johnson & Johnson vaccines are approved under an emergency use authorization for individuals 18 years of age and older. Id. The CDC recommends that all individuals aged 12 and older be vaccinated against COVID-19. Id. "Vaccines protect individuals who are vaccinated as well as those around them as vaccinated individuals are much less likely to become infected with COVID-19 and transmit this infection to others," which "is especially important when the surrounding individuals are unvaccinated such as children younger than 12 years of age who are not yet eligible for COVID-19 vaccinations or individuals at high risk of complications because of underlying medical conditions." Id. at ¶ 13.

"Unvaccinated individuals exposed to COVID-19 are very likely to become infected in the absence of mitigation measures and may then transmit the virus to others," while "[f]ully vaccinated people get COVID-19 (known as vaccine breakthrough infections) much less often than unvaccinated people." Sutton Decl. ¶ 7. In Oregon, 70% of adults have been vaccinated, which substantially reduced the number of COVID-19 deaths during the surge in cases observed in August and September of 2021. Id. at ¶10. An additional 5.8% of Oregonians have received one dose of either the Moderna or Pfizer vaccine but have not yet received the second dose and are considered partially vaccinated. Id. at ¶ 15. There are adequate supplies available to vaccinate all eligible Oregonians. Id. at ¶ 11.

The vaccines have demonstrated continued effectiveness in protecting against the Delta variant of COVID-19. Sutton Decl. ¶ 12. "While hospitalizations and deaths soared among those not fully vaccinated, individuals who were fully vaccinated made up only a small percentage of hospitalizations and deaths during the current surge of cases in Oregon." Id. at ¶ 13. "The majority of COVID-19 cases, hospitalizations and deaths during this surge are among those who are not fully vaccinated" and "counties with higher vaccination rates are associated with lower case rates." Id. at ¶ 21.

The strength and duration of immunity following COVID-19 infection "is poorly understood," but the "majority of studies describing SARS-CoV-2 neutralizing antibodies (antibodies which prevent viral replication and are considered a measurement of immunity) are limited to three months following infection." Sutton Decl. ¶ 16. A study of the development of neutralizing antibodies following COVID-19 infection "demonstrated that 12% of individuals did not develop neutralizing antibodies and an additional 27% demonstrated rapid waning of neutralizing antibodies" within 180 days of infection. Id. at ¶ 17. "The effectiveness and duration of natural immunity may vary widely between individuals and a history of previous infection may not provide durable protection against reinfection." Id. "In a recent study of the risk of reinfection among vaccinated and unvaccinated individuals previously infected with COVID-19, unvaccinated individuals had twice the reinfection rate of vaccinated individuals" and the CDC "recommends that all individuals previously infected with COVID-19 be vaccinated to reduce the risk of reinfection." Id. at ¶ 19.

II. Oregon Vaccine Mandates

On August 13, 2021, Oregon Governor Kate Brown issued Executive Order ("EO") 21-29 which requires all employees and workers employed by the executive branch of the Oregon state government to be fully vaccinated by October 18, 2021. Employees who do not comply with the requirements of EO 21-29 "will face personnel consequences up to and including separation from employment." However, the state will provide "reasonable accommodations" for "individuals unable to be vaccinated due to disability, qualifying medical condition, or sincerely held religious belief." Requests for such exceptions are to be made in writing and the vaccination requirement will not apply while such a request is pending or has been approved.

The Oregon Health Authority has also enacted administrative rules mandating vaccination. Oregon Administrative Rule ("OAR") 333-019-1010 provides that healthcare providers and healthcare staff who work in a healthcare setting are to be fully vaccinated by October 18, 2021 unless they have provided documentation of a medical or religious exception. Medical exceptions "must be corroborated by a document signed by a medical provider ... certifying that the individual has a physical or mental impairment that limits the individual's ability to receive a COVID-19 vaccination based on a specified medical diagnosis, and that specifies whether the impairment is temporary in nature or permanent." OAR 333-019-1010(4)(b)(A). A religious exception "must be corroborated by a document ... signed by the individual stating that the individual is requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely held religious belief...