Brox v. Wood's Hole, Martha's Vineyard and Nantucket Steamship Authority

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 22-10242-RGS

CAPTAIN ALBERT BROX et al.

v.

THE WOODS HOLE, MARTHA’S VINEYARD, AND

NANTUCKET STEAMSHIP AUTHORITY and

JANICE KENNEFICK

MEMORANDUM AND ORDER ON

PLAINTIFFS’ RENEWED MOTION FOR

PRELIMINARY INJUNCTIVE RELIEF

December 11, 2023

STEARNS, D.J.

Plaintiffs, who are eleven current and former employees of the Woods

Hole, Martha’s Vineyard, and Nantucket Steamship Authority (Authority),

claim that the Authority infringed on their constitutional and statutory rights

by implementing a policy (Policy) requiring that they be vaccinated against

COVID-19 to maintain their employee status at the Authority unless qualified

for a medical or religious exemption. Plaintiffs each submitted requests to

be exempt from the Policy on religious grounds. The Authority denied each

of their requests.1 Plaintiffs claim that the Policy violates their right to free

exercise of religious worship under Article 2 of the Massachusetts

Declaration of Rights (Count I); the First Amendment’s Free Exercise Clause

(Count II); the Massachusetts Unlawful Discrimination Law, Mass. Gen.

Laws ch. 151B, § 4 (Count III); and their Fourteenth Amendment due process

rights to privacy, personal autonomy, and personal identity (Count IV). They

seek preliminary injunctive relief from enforcement of the Policy.

Plaintiffs first moved for a preliminary injunction on February 18,

2022. The court denied the motion on March 10, 2022, and plaintiffs timely

appealed on April 7, 2022. On October 6, 2023, the First Circuit affirmed

the court’s denial of preliminary injunctive relief as to Counts I, III, and IV

and vacated the court’s denial as to Count II, directing the court to consider

the appropriate level of scrutiny to apply to plaintiffs’ free exercise claims

and to determine “how [the First Circuit’s] decisions in Mills and Lowe bear

on appellants’ request for such relief.” Brox v. Woods Hole, Martha’s

Vineyard & Nantucket Steamship Auth., 83 F.4th 87, 100 (1st Cir. 2023).

After careful consideration of the parties’ initial and renewed briefing and

1 Four plaintiffs subsequently agreed to be vaccinated and remained

employed by the Authority. Seven plaintiffs refused vaccination and were

terminated.

the impact of Mills and Lowe on plaintiffs’ claims, the court will DENY

plaintiffs’ renewed motion for preliminary injunctive relief.

BACKGROUND

COVID-19 Pandemic2

The COVID-19 pandemic is among the deadliest pandemics in human

history. The disease spread rapidly throughout the world and to date has

killed over one million Americans, including 25,000 Massachusetts

residents. To combat the spread of the virus, the United States Food and

Drug Administration (FDA) granted emergency use authorizations (EUAs)

to COVID-19 vaccines manufactured by Pfizer/BioNTech (Pfizer Vaccine)

and Moderna (Moderna Vaccine) in December of 2020 and to a vaccine

manufactured by Janssen Biotech, Inc. (Janssen Vaccine) in February of

2021.3

2 The court draws much of this background from the websites of the

Center for Disease Control and Prevention (CDC) and the United States Food

and Drug Administration (FDA). Because the accuracy of this information

“cannot reasonably be questioned,” the court may take judicial notice of

these facts. Fed. R. Evid. 201(b)(2); see also Pietrangelo v. Sununu, 2021

WL 4487850, at *1 n.1 (1st Cir. Oct. 1, 2021) (taking judicial notice of “state

and federal vaccine distribution data” at preliminary injunction stage); Gent

v. CUNA Mut. Ins. Soc’y, 611 F.3d 79, 84 n.5 (1st Cir. 2010) (taking judicial

notice of information on CDC’s website).

3 See Press Release, U.S. FDA, FDA Approves First COVID-19 Vaccine

(Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/

fda-approves-first-covid-19-vaccine (Pfizer Press Release); Press Release,

Before granting full approval of the Pfizer and Moderna Vaccines, the

FDA reviewed “hundreds of thousands of pages” of data and conducted

independent analyses of the Vaccines’ safety and effectiveness.4 The FDA

concluded that the Pfizer and Moderna Vaccines met its “high standards for

safety, effectiveness, and manufacturing quality” and gave full approval to

the Pfizer Vaccine on August 23, 2021, and to the Moderna Vaccine on

January 31, 2022.5

The Vaccines are extremely effective.6 But, as is common with

vaccines, the immunity generated by the Vaccines wanes over time.

Accordingly, in September of 2021, the FDA approved “booster” doses of the

U.S. FDA, Coronavirus (COVID-19) Update: FDA Takes Key Action by

Approving Second COVID-19 Vaccine (Jan. 31, 2022),

https://www.fda.gov/news-events/press-announcements/coronavirus-

covid-19-update-fda-takes-key-action-approving-second-covid-19-vaccine

(Moderna Press Release); 86 Fed. Reg. 28608 (May 27, 2021).

At Janssen’s request, the FDA revoked the EUA for the Janssen vaccine

on June 1, 2023. Jannsen COVID-19 Vaccine, U.S. FDA,

https://www.fda.gov/vaccines-blood-biologics/coronavirus-covid-19-cber-

regulated-biologics/janssen-covid-19-vaccine (last updated June 2, 2023).

4 Pfizer Press Release (emphasis omitted); see also Moderna Press

Release.

5 Moderna Press Release (emphasis omitted); see also Pfizer Press

Release.

6 See COVID-19 Vaccine Effectiveness Update, CDC (Aug. 31, 2023),

https://covid.cdc.gov/covid-data-tracker/#vaccine-effectiveness.

Pfizer and Moderna Vaccines, and it has since approved additional booster

doses.7 Although the CDC encourages vaccinated individuals to receive

booster doses to bolster their immunity, it considers individuals fully

vaccinated if they received the initial two-dose series of the Pfizer or

Moderna Vaccine or one dose of a single-dose COVID-19 vaccine, such as the

Janssen Vaccine.8 Since the advent of the widespread use of the Vaccines,

COVID-19 infections and deaths have decreased significantly.

The Policy

The Authority, which the Massachusetts Legislature created in 1960 to

provide ferry service to the islands of Martha’s Vineyard and Nantucket,

“serves members from all walks of life, including young children, elderly

individuals and the immunocompromised.” Decl. of Janice Kennefick in

Opp’n to Pls.’ Mot. for a Prelim. Inj. (Kennefick Decl.) (Dkt. # 16) ¶¶ 3-5, 11.

Many of the Authority’s 750 employees, including plaintiffs, “regularly

7 See Press Release, U.S. FDA, FDA Authorizes Booster Dose of Pfizer-

BioNTech COVID-19 Vaccine for Certain Populations (Sept. 22, 2021),

https://www.fda.gov/news-events/press-announcements/fda-authorizes-

booster-dose-pfizer-biontech-covid-19-vaccine-certain-populations.

8 Data Definitions for COVID-19 Vaccinations in the United States,

CDC, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/reporting-

vaccinations.html (last updated Oct. 13, 2023).

interact with fellow employees, customers and/or vendors as part of their job

responsibilities.” Id. ¶ 20.

On January 3, 2022, the Authority notified employees of the Policy.9

Id. ¶ 27. The Policy was created “to prevent viral infection and

transmission,”10 and it required all employees to “receive[] at least one

COVID-19 vaccination by . . . January 5, 2022” and to be “fully vaccinated in

accordance with the CDC definition on or before February 16, 2022.” Id.,

Ex. F (Policy) at 1-2 (emphasis omitted). The Policy permitted two types of

exemptions: First, if an employee provided documentation from a healthcare

provider that the vaccine was medically contraindicated, they could qualify

for an exemption. Id. at 3. Second, an employee who “object[ed] to

vaccination due to a sincerely held religious belief” could also qualify for an

9 The Authority modeled the Policy after then-Governor Charlie

Baker’s Executive Order No. 595, which required all executive department

employees to be vaccinated against COVID-19 because “widespread

vaccination is the only means the Commonwealth has over the long term to

ensure protection from COVID-19.” Kennefick Decl. ¶ 21-22. Executive

Order No. 595 “encouraged” independent state agencies and authorities,

such as the Authority, to adopt a similar policy. Id. ¶¶ 21-23.

10 The Authority articulates a slightly broader interest in enacting the

Policy – “protecting the health and safety of its employees and customers,”

Defs.’ Renewed Opp’n at 1, 9, 10 – and plaintiffs accuse it of engaging in a

“post-hoc reimagining” of its asserted interest, Renewed Mot. for Prelim. Inj.

at 6. Because preventing infection and transmission is a legitimate interest,

the court need not address this broader framing.

exemption. Id. at 4. Employees who remained unvaccinated and who were

not approved for an exemption were subject to progressive discipline, “up to

and including termination.” Id.

Nine plaintiffs timely sought religious exemptions from the Policy.11

Pls.’ Br. in Supp. of Renewed Mot. for Inj. Relief (Mot. for Prelim. Inj.) (Dkt.

# 10) at 5. The Authority reviewed the requests, conducted in-person

interviews of the plaintiffs, and ultimately rejected each of the requests.

Kennefick Decl. ¶¶ 35-52. The Authority explained that plaintiffs’ jobs

required them to “regularly interact with others in physically enclosed spaces

onboard the vessel,” engage in “significant in-person customer service” such

that “social distancing is at times impossible,” and “interact[] and interfac[e]

with customers and other employees.” Id. ¶¶ 40-48. It thus concluded that

“exemptions from the Policy for these individuals would unreasonably risk

their own health and safety as well as the health and safety of fellow

employees, customers and/or vendors” and “undermine public trust and

confidence in the safety of the Authority’s facilities and vessels.” Id. ¶ 52.

11 Jeffrey D’Amario and Sonia Simoneau sought religious exemptions

approximately one month after the deadline to submit exemption requests.

Kennefick Decl. ¶ 48.

DISCUSSION

“A preliminary injunction is an extraordinary remedy never awarded

as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

The court’s discretion to issue preliminary injunctive relief “is ‘to be used

sparingly, and only in a clear and plain case.’” Rizzo v. Goode, 423 U.S. 362,

376 (1976), quoting Irwin v. Dixon, 50 U.S. (9 How.) 10, 33 (1850). In

exercising this discretion, the court weighs four factors: “(1) a likelihood of

success on the merits, (2) a likelihood of irreparable harm absent interim

relief, (3) a balance of equities in the plaintiff’s favor, and (4) service of the

public interest.” Arborjet, Inc. v. Rainbow Treecare Sci. Advancements,

Inc., 794 F.3d 168, 171 (1st Cir. 2015). The first factor is the “sine qua non”

of the analysis; “if the moving party cannot demonstrate that he is likely to

succeed in his quest, the remaining factors become matters of idle curiosity.”

New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.

2002). Plaintiffs bear the burden of establishing that these factors weigh in

their favor. Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st

Cir. 2006).

The Free Exercise Clause of the First Amendment, incorporated into

State law by the Fourteenth Amendment, “‘protects religious observers

against unequal treatment’ and against ‘laws that impose special disabilities

on the basis of religious status.’” Espinoza v. Montana Dep’t of Revenue, 140

S. Ct. 2246, 2254 (2020), quoting Trinity Lutheran Church of Columbia, Inc.

v. Comer, 582 U.S. 449, 458 (2017). A facially neutral and generally

applicable policy that “incidentally burdens free exercise rights” does not

violate the First Amendment “if it is rationally related to a legitimate

governmental interest.” Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir. 2021). But

a policy that burdens religious practice that is “not neutral or not of general

application” is subject to strict scrutiny, meaning it “must advance ‘interests

of the highest order’ and must be narrowly tailored in pursuit of those

interests.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 546 (1993), quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978).

A generally applicable policy is one that does “not selectively burden

religiously motivated conduct while exempting comparable secularly

motivated conduct.” Mills, 16 F.4th at 29. A policy is thus not generally

applicable if it “prohibits religious conduct while permitting secular conduct

that undermines the government’s asserted interests in a similar way.”

Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021); see also Tandon

v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam) (a policy is not

generally applicable if it “treat[s] any comparable secular activity more

favorably than religious exercise”).

The First Circuit recently decided two cases involving First

Amendment challenges to COVID-19 vaccination policies. In Mills, the First

Circuit considered the State of Maine’s vaccination policy that required all

workers in licensed healthcare facilities to be vaccinated against COVID-19

subject only to a medical exemption. 16 F.4th at 24. The plaintiffs,

healthcare workers who objected to vaccination on religious grounds, sought

preliminary injunctive relief from enforcement of the policy. The Maine

district court denied the request. The First Circuit concluded that the policy

was subject to rational basis review because it was both neutral, as the State

did not “single[] out religious objections to the vaccine ‘because of their

religious nature,’” and generally applicable, because it allowed for “a single

objective exemption” and did not “permit ‘secular conduct that undermines

the government’s asserted interest in a similar way.’” Id. at 30, quoting

Fulton, 141 S. Ct. at 1877. Finding that the policy “easily satisfies rational

basis review,” the First Circuit affirmed the district court.12 Id. at 32.

In Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023), the First Circuit again

considered Maine’s vaccination policy for healthcare workers, this time at

12 The First Circuit noted that even if strict scrutiny applied, the

plaintiffs still had no likelihood of success on the merits because “[f]ew

interests are more compelling than protecting public health against a deadly

virus” and Maine “reasonably used all the tools available to fight contagious

diseases.” Mills, 16 F.4th at 32.

the motion-to-dismiss stage. Although Lowe involved the same plaintiffs

who challenged the same policy as in Mills, the First Circuit explained that

Mills did not control “because the different procedural postures implicate

different burdens, standards of review, and factual records.” Id. at 712 n.10.

Applying the deferential Rule 12(b)(6) standard, the First Circuit found that

the plaintiffs plausibly alleged that the policy was not generally applicable

(thus strict scrutiny applied) and stated a claim that Maine’s policy did not

satisfy strict scrutiny. Id. at 714, 717. But the Court was careful to “emphasize

the narrowness of [its] holding”; it “[did] not determine what standard of

scrutiny should ultimately apply to the free exercise claim,” nor did it “decide

whether the Mandate survives the applicable level of scrutiny.” Id. at 718.

Likelihood of Success on the Merits

To assess plaintiffs’ likelihood of success on the merits, the court must

first determine the level of scrutiny that applies to their claims. The burden

of demonstrating that strict scrutiny applies rests with plaintiffs.13 If they

carry this burden, the burden shifts to the Authority to show that the Policy

satisfies strict scrutiny. See Kennedy v. Bremerton Sch. Dist., 142 S. Ct.

2407, 2421 (2022).

13 Plaintiffs could also carry their burden by showing that the Policy

fails rational basis review, but they do not make that argument.

Plaintiffs’ only argument14 that strict scrutiny applies is that the Policy

is not generally applicable because “it permitted medical exemptions to

persons who pose the same risk of spreading COVID-19 as similarly situated

persons to whom defendants denied religious exemptions.”15 Pls.’ Renewed

Mot. for Prelim. Inj. Following the First Circuit’s Remand (Renewed Mot. for

Prelim. Inj.) (Dkt. # 38) at 5. To support this claim, plaintiffs cite to an

affidavit from a former employee of the Authority, Greg Manchester, who

requested both religious and medical exemptions from the Policy. Aff. of

Greg Manchester (Manchester Aff.) (Dkt. # 17, Ex. 1) ¶¶ 5-6. The Authority

14 In their Renewed Reply, plaintiffs argue that the Policy created a

“system of individualized exemptions to be granted or denied on a case-by-

case, discretionary basis.” Pls.’ Reply Mem. to Defs.’ Opp’n to Pls.’ Renewed

Mot. for Prelim. Inj. (Renewed Reply) (Dkt. # 44) at 10. The Renewed Reply

is the fourth brief that plaintiffs have filed before the court on this issue, but

this is the first time they have made this argument. The argument is waived.

See Wills v. Brown Univ., 184 F.3d 20, 27 (1st Cir. 1999) (“[T]heories offered

for the first time in the reply brief are not preserved.”); Noonan v.

Wonderland Greyhound Park Realty LLC, 723 F. Supp. 2d 298, 349 (D.

Mass. 2010) (“The purpose of a reply memorandum is not to file new

arguments that could have been raised in a supporting memorandum.”).

15 Elsewhere, plaintiffs contend that everyone, whether vaccinated or

not, carries an equivalent risk of transmitting COVID-19 “given the vaccines’

inability to inhibit transmission,” and thus “[it] would be irrational, legally

indefensible and contrary to the public interest for government to mandate

vaccines.” Renewed Mot. for Prelim. Inj. at 7. To the extent that plaintiffs

mean to argue that the Authority cannot have acted pursuant to a legitimate

or compelling interest because the Vaccines are not effective, this is belied by

publicly available data. At any rate, the argument is too underdeveloped to

merit further consideration.

granted him a brief medical exemption but denied his requested religious

exemption. Id. ¶¶ 7, 10. Plaintiffs contend that this shows that the Policy is

not generally applicable because, just as with plaintiffs, Manchester worked

“in close contact with his colleagues and the public alike,” yet the Authority

granted him an exemption. Renewed Mot. for Prelim. Inj. at 5.

The Authority counters that the Policy is generally applicable, so

rational basis review applies, because the Policy “does not target or

selectively burden religious conduct.” Defs.’ Opp’n to Pls.’ Renewed Mot. for

Prelim. Injunctive Relief (Defs.’ Opp’n) (Dkt. # 15) at 11 n.5; see also Defs.’

Opp’n to Pls.’ Renewed Mot. for Prelim. Inj. (Defs.’ Renewed Opp’n) (Dkt.

# 42) at 7. It argues that granting Manchester’s medical exemption

“furthered the Authority’s goal of protecting the health and safety of its

employees” but that granting plaintiffs’ requested religious exemptions

would not further this goal. Defs.’ Renewed Opp’n at 9. Further, the

Authority claims that plaintiffs’ religious exemption requests are not

comparable to Manchester’s medical exemption request because

Manchester’s request is “(1) rarer, (2) more time-limited, and (3) more

geographically insignificant than the eleven (11) religious exemption

requests submitted by Plaintiffs.” Id. at 14.

In considering the whole, the court concludes that rational basis is the

applicable level of scrutiny.16 Plaintiffs do not challenge that the Policy is

neutral, and the court agrees that it is. And the Policy does not, facially or as

applied to plaintiffs, permit “secular conduct that undermines the

government’s asserted interest in a similar way” as comparable religious

conduct. Fulton, 141 S. Ct. at 1877; see also Lukumi, 508 U.S. at 543. The

core problem with plaintiffs’ argument is that the risks of granting

Manchester a medical exemption are not comparable to those of granting

plaintiffs their requested religious exemptions.

First, plaintiffs sought permanent exemptions from the Policy, but

Manchester sought to work while unvaccinated for only three months and

was only permitted to work while unvaccinated for six weeks. See

Manchester Decl. ¶ 10. “Comparability is concerned with the risks various

activities pose,” and granting a six-week exemption poses a materially

different risk than that posed by allowing plaintiffs to work while

unvaccinated for an indefinite period. Tandon, 141 S. Ct. at 1296; see also

16 The First Circuit’s holding does not foreclose such a finding as

plaintiffs suggest. See Renewed Reply at 2. Although the First Circuit found

no independent grounds manifest in the record on which to affirm, see Brox,

83 F.4th at 98, circuit courts are of course limited to the records filed with

them, and the record on remand differs in important ways from the appellate

record. The record contains new, compelling evidence regarding the

comparability of the requested exemptions that informs the court’s finding.

Lowe, 68 F.4th at 715 (evidence that “medical exemptions are . . . more time

limited” can show that “the two exemptions would not have comparable

public health effects”).

Second, the record shows that there were at least thirteen requests for

religious exemptions (the eleven plaintiffs, Manchester, and one religious

objector who could work fully remotely and received an exemption) and only

one request for a medical exemption. The relevant comparison is not

between one individual who is unvaccinated for religious reasons and one

who is unvaccinated for medical reasons. Instead, “Supreme Court

precedent ‘suggests the appropriateness of considering aggregate data about

transmission risks.’” Lowe, 68 F.4th at 716, quoting We the Patriots USA,

Inc. v. Hochul, 17 F.4th 266, 287 (2d Cir. 2021); see also Roman Cath.

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66-67 (2020) (comparing a

“large store in Brooklyn that could ‘literally have hundreds of people

shopping there on any given day’” with a “nearby church or synagogue [that]

would be prohibited from allowing more than 10 or 25 people inside”). In

the aggregate, granting plaintiffs’ eleven exemptions poses a higher risk than

granting one.17 See Lowe, 68 F.4th at 715 (a showing that “medical

17 Plaintiffs claim that, on this logic, “granting plaintiffs’ exemption

requests would have meant defendants had to contend with a 1,100%

increase in the chance of COVID-19 spreading on defendants’ vessels” and

exemptions are likely to be rarer” than religious exemptions can show the

exemptions are not comparable).

The Policy easily satisfies rational basis review, meaning that plaintiffs

are unlikely to succeed on the merits. Limiting COVID-19 infection and

transmission is of course a legitimate governmental interest. See Roman

Cath. Diocese of Brooklyn, 141 S. Ct. at 67; Mills, 16 F.4th at 32. And

requiring all employees to be vaccinated, subject to limited exemptions, is

rationally related to that interest. See Mills, 16 F.4th at 32.

In reply, plaintiffs make much of the fact that the P0licy does not

mirror the policy at issue in Mills. See, e.g., Renewed Reply at 11-14. They

argue that Mills is “starkly differ[ent]” than this case because (1) “there is no

record to support a[] rationale that defendants’ customers, employees, or

facilities are or were similarly ‘uniquely’ vulnerable”; (2) Maine’s policy

offered only medical exemptions; and (3) the Authority did not suffer any

hardship, such as a loss in ridership, by permitting employees to work while

unvaccinated. Id. Regarding the first argument, one of Maine’s stated

that Manchester alone created a 100% increase of transmission. Renewed

Reply at 15-16. This is wrong as a mathematical and scientific matter, see

Lowe, 68 F.4th at 716 (“[A]s an epidemiological matter, the number of people

seeking exemptions” is relevant to “assessing the relative risks” of

exemptions), quoting We the Patriots, 17 F.4th at 286-287, and completely

overlooks the fact that the risks associated with granting Manchester’s

exemption were further mitigated because his exemption was time limited.

purposes in adopting its policy was to “protect[] the health of those in the

state most vulnerable to the virus.” Mills, 16 F.4th at 31. The Authority had

no such purpose, so it is irrelevant that the record does not support it. As to

the second argument, Mills did not hold that the only constitutional

vaccination policy is Maine’s, nor did it hold that including a religious

exemption is unconstitutional. It merely explained that a generally

applicable policy cannot “rest on assumptions about the public health

impacts of various secular or religious activities.” Id. As noted, the Policy

does not. The third argument is also irrelevant. The Authority need not

prove it faced a loss in ridership (or any hardship). It only needs to show that

it has a legitimate government interest in implementing the Policy –

preventing infection and transmission – which it did.

Although rational basis is the applicable level of scrutiny, even if strict

scrutiny applied, plaintiffs still would not have carried their burden of

showing they are likely to succeed on the merits.

To determine whether the Authority had a compelling interest in

limiting COVID-19 infection and transmission, the question “is not whether

the [Authority] has a compelling interest in enforcing [the Policy] generally,

but whether it has such an interest in denying an exception” to plaintiffs.

Fulton, 141 S. Ct. at 1881. The Authority has a compelling justification: as

discussed, granting eleven indefinite religious exemptions creates a

substantially higher risk of infection and transmission than granting one

time-limited medical exemption.

The Policy is also narrowly tailored. The Authority has shown that

“measures less restrictive of the First Amendment activity could not address

its interest in reducing the spread of COVID.” See Tandon, 141 S. Ct. at 1296-

1297. The Authority tried other, non-pharmaceutical measures to prevent

infection and transmission of COVID-19, including “cleaning measures,

social distancing, daily employee health screening, and additional payroll

expenses and overtime, among other measures.” Defs.’ Renewed Opp’n at

16, citing Kennefick Decl. ¶ 12. The Authority also attempted to encourage

its employees to become vaccinated by offering a $100 incentive to

individuals who were vaccinated prior to the implementation of the Policy.

See Policy at 2. Despite the Authority’s efforts and over $1.5 million in

expenditures, COVID-19 outbreaks on the Authority’s vessels continued to

occur. Defs.’ Renewed Opp’n at 16; Kennefick Decl. ¶¶ 12-16.

The Authority further considered plaintiffs’ requested

accommodations of wearing masks and testing weekly for COVID-19.

Kennefick Decl. ¶ 55. The Authority found that mask wearing was

insufficient to mitigate infection and transmission and that it would be

difficult to police compliance with such a requirement. Id. As to weekly

testing, the Authority concluded that testing would miss infections on days

when employees were not tested. Id. The Authority thus “has no alternative

to meet its goal other than mandating [its employees] to be vaccinated.”

Mills, 16 F.4th at 33.

Finally, the Policy is not overinclusive. It is applicable only to

individuals who are employed by the Authority and thus “regularly interact

with fellow employees, customers and/or vendors as part of their core job

responsibilities.” Kennefick Decl. ¶ 20. Nor is it underinclusive as it does

not “fail to prohibit nonreligious conduct that endangers [the Authority’s]

interests in a similar or greater degree” than religious conduct does. Lukumi,

508 U.S. at 543. Whether the Policy is underinclusive turns on whether the

religious and secular conduct are comparable. Id.; Tandon, 141 S. Ct. at 1297.

The court has already concluded that they are not, and it need say no more.

Likelihood of Irreparable Harm, Balance of Equities, and the

Public Interest

Having concluded that plaintiffs are unlikely to succeed on the merits

of their free exercise claim, the remaining preliminary injunction factors are

“matters of idle curiosity.” New Comm Wireless Servs., Inc., 287 F.3d at 9.

Plaintiffs contend that each of these factors weighs in their favor because the

“loss of First Amendment freedoms” constitutes irreparable injury and tilts

the balance of equities in their favor, and because the public has an interest

in “ensuring that [the government] follows the Free Exercise Clause.”

Renewed Mot. for Prelim. Inj. at 8-11, first quoting Roman Cath. Diocese of

Brooklyn, 141 S. Ct. at 67, and then quoting Doster v. Kendall, 54 F.4th, 398,

428 (6th Cir. 2022). This is all correct as a doctrinal matter, but plaintiffs

have not shown the prerequisite loss of protected First Amendment

freedoms. The remaining preliminary injunction factors thus weigh in the

Authority’s favor.

ORDER

For the foregoing reasons, plaintiffs’ renewed motion for preliminary

injunctive relief is DENIED.

SO ORDERED.

/s/ Richard G. Stearns__________

UNITED STATES DISTRICT JUDGE