SMITH v. BIDEN

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ERICH SMITH, FRANK E.

GARWOOD, JR., MARIBEL

No. 1:21-cv-19457

LORENZO, AND DR. DANIEL

DONOFRIO,

Plaintiffs,

v.

OPINION

PRESIDENT JOSEPH R. BIDEN,

JR. (in his official capacity

and any successor to the

Office of the President),

Defendant.

APPEARANCES:

DANA WEFER

LAW OFFICES OF DANA WEFER

375 SYLVAN AVE

ENGLEWOOD CLIFFS, NJ 07632

973-610-0491

On behalf of Plaintiffs, Erich Smith, Frank E. Garwood, Jr.,

Maribel Lorenzo, and Dr. Daniel Donofrio

ANGELA JUNEAU

DOJ-USAO

OFFICE OF THE U.S. ATTORNEY, DISTRICT OF NEW JERSEY

970 BROAD STREET

SUITE 700

NEWARK, NJ 07102

On behalf of Defendant, President Joseph R. Biden, Jr.

INTRODUCTION

This matter comes before the Court upon a Motion for Temporary

Restraining Order and/or for a Preliminary Injunction (ECF No. 4,

“the Motion”) filed by Plaintiffs, Erich Smith, Frank E. Garwood,

Jr., Maribel Lorenzo, and Dr. Daniel Donofrio (collectively

“Plaintiffs”) seeking to enjoin Defendants from enforcing

Executive Order 14042 and Executive Order 14043 mandating COVID-19

vaccination for federal employees and employees of federal

contractors. For the reasons stated herein, the Motion is denied.

I. PROCEDURAL HISTORY

On October 29, 2021, Plaintiffs filed a Verified Complaint

and on the same date, an Amended Verified Complaint for Declaratory

and Injunctive Relief, against Defendant, President Joseph R.

Biden, Jr., (“Defendant” or “President”) seeking to enjoin

Executive Orders 14042 and 14043 issued on September 9, 2021

(collectively the “Executive Orders” or “mandates”). (ECF No. 1,

“Complaint” and ECF No. 2, “Amended Complaint” ¶¶ 1-3).

Plaintiffs’ Amended Complaint contained a single Count claiming

the Executive Orders are unconstitutional and violate their Fifth

Amendment rights of privacy and liberty, including the right to

refuse medical procedures and the right to protect private medical

information. (Id. ¶ 96-104).

On November 3, 2021, Plaintiffs filed this Motion. (ECF No.

4). On November 4, 2021, the Court issued an Order to Show Cause

why a temporary restraining order and/or preliminary injunction

should not be issued and directed Plaintiffs’ counsel to give

notice to Defendant, and/or file an affidavit pursuant to Federal

Rule of Civil Procedure 65(b)(1)(B) as to efforts to do so and to

effectuate service upon Defendant pursuant to Federal Rule of Civil

Procedure 4(i). (ECF No. 6). The Court further set a briefing

schedule and hearing for November 8, 2021. (ECF No. 6).

On November 5, 2021, the Defendant filed Opposition to the

Motion. (ECF No. 9, “Def. Opp. Br.”). On November 6, 2021,

Plaintiffs filed a Reply Brief (ECF No. 12, “Pl. Reply”) and a

Motion for Leave to File a Second Amended Complaint (ECF No. 13,

“Motion to Amend”) to name Merrick B. Garland, in his official

capacity as Attorney General of the United States, Kilolo Kijakazi,

in her official capacity as Acting Commissioner of the Social

Security Administration, and the United States of America as

Defendants, and to further add a claim that the Executive Orders

violate the Plaintiffs’ Fifth Amendment Right to Equal Protection.

(ECF No. 13-2). On November 7, 2021, Plaintiffs filed a Motion to

Expedite their Motion to Amend filed the day prior. (ECF No. 14).

Oral argument was held on November 8, 2021. As of the date of

the hearing, Plaintiffs had not complied with Federal Rule of Civil

Procedure 65(b)(1)(B) as to the proposed newly added Defendants,

and thus, the Court considers the request for relief as to those

Defendants to be ex parte and without notice. For purposes of this

Motion, the Court will consider the proposed Second Amended

Complaint with the newly added Defendants and claims.

II. FACTUAL BACKGROUND

On September 9, 2021, the President issued two Executive

Orders. First, Executive Order 14043 “Requiring Coronavirus

Disease 2019 Vaccination for Federal Employees.” Exec. Order No.

14043, 86 Fed. Reg. 50989 (Sept. 9, 2021). Executive Order 14043

states that “it is the policy of my Administration to halt the

spread of the coronavirus disease 2019 (COVID-19), including the

B.1.617.2 (Delta) variant, by relying on the best available data

and science-based public health measures.” Id. § 1. Executive Order

14043 further states “the health and safety of the Federal

workforce, and the health and safety of members of the public with

whom they interact, are foundational to the efficiency of the civil

service.” Id. Thus, Executive Order 14043 provides “in light of

public health guidance regarding the most effective and necessary

defenses against COVID-19, I have determined that to promote the

health and safety of the Federal workforce and the efficiency of

civil service, it is necessary to require COVID-19 vaccination for

all Federal employees, subject to such exceptions as required by

law.” Id. The Safer Federal Workforce Task Force issued guidance

on September 13, 2021 requiring federal employees be fully

vaccinated no later than November 22, 2021. U.S. SAFER FED. WORKFORCE

TASK FORCE, COVID-19 WORKPLACE SAFETY: AGENCY MODEL SAFETY PRINCIPLES (Sept.

2021). Per additional guidance, “people are considered fully

vaccinated for COVID-19 two weeks after they have received the

second dose in a two-dose series, or two weeks after they have

received a single dose vaccine.” U.S. SAFER FED. WORKFORCE TASK FORCE,

COVID-19 WORKPLACE SAFETY: GUIDANCE FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS,

4 (Sept. 2021). Employees must receive the second dose or single

dose of their vaccine no later than November 8, 2021 to meet the

deadline. U.S. SAFER FED. WORKFORCE TASK FORCE, FAQ, VACCINATIONS,

https://www.saferfederalworkforce.gov/faq/vaccinations/ (last

visited Nov. 8, 2021).

Executive Order 14042 “Ensuring Adequate COVID Safety

Protocols for Federal Contractors” was issued on the same date.

Exec. Order No. 14042, 86 Fed. Reg. 50985 (Sept. 9, 2021).

Executive Order 14042 states that “this order promotes economy and

efficiency in Federal procurement by ensuring that the parties

that contract with the Federal Government provide adequate COVID-

19 safeguards to their workers performing on or in connection with

a Federal Government contract.” Id. § 1. Thus, Executive Order

14042 directs that federal departments and agencies “shall . . .

include a clause that the contractor and any subcontractors . . .

shall, for the duration of the contract, comply with all guidance

for contractor or subcontractor workplace locations published by

the Safer Federal Workforce Task Force.” Id. § 2. The Safer Federal

Workforce Task Force issued guidance on September 23, 2021

requiring covered contractor employees be fully vaccinated no

later than December 8, 2021. U.S. SAFER FED. WORKFORCE TASK FORCE, COVID-

19 WORKPLACE SAFETY: GUIDANCE FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS, 5

(Sept. 2021). The deadline was subsequently extended to January 4,

2022. (EFC No. 12, “Def. Opp. Br.” at 8).

Plaintiffs Erich Smith, Frank E. Garwood, Jr. and Dr.

Donofrio (collectively, the “employee Plaintiffs”) are federal

employees subject to Executive Order 14043. (ECF No. 2, “Amended

Complaint” ¶ 9). Plaintiff Smith works for the Department of

Justice, Federal Bureau of Prisons as a foreman for a factory

within the prison. (Id. ¶ 92). Plaintiff Garwood is an employee of

the Department of Justice, Federal Bureau of Prisons as a training

instructor. (Id. ¶ 93). Plaintiff Dr. Donofrio is a chiropractor

employed by the Social Security Administration. (Id. ¶ 95).

Plaintiff Maribel Lorenzo (the “contractor Plaintiff”) is employed

as an underwriter by Horizon Blue Cross and Blue Shield and is

subject to Executive Order 14042 due to her employer’s federal

contracts. (Id. ¶ 94). Plaintiffs do not want to be vaccinated for

“a range of personal reasons.” (ECF No. 2, “Amended Complaint” ¶¶

91-95; ECF No. 4, “Pl. Moving Br.” at 7). None of the Plaintiffs

raise or present issues with respect to a request for an exemption,

for example, on religious or medical grounds, from the mandate.

(Id.). There are no allegations in the Complaint, Amended

Complaint, proposed Second Amended Complaint, or in any of the

briefs filed by Plaintiffs, that indicated any of the Plaintiffs

had submitted or intended to submit a request for an exception.

(Id.). However, upon questioning by the Court as to this issue

during oral argument, Plaintiffs’ counsel advised for the first

time that one or more of the Plaintiffs had in fact submitted a

request for an exception. 1 The Court issued an Order (ECF No. 17)

directing Plaintiffs’ counsel to provide information related to

any exceptions requested by the Plaintiffs and the status thereof.

On November 8, 2021, Plaintiffs’ counsel filed a Declaration (ECF

No. 18) stating: (1) Plaintiff Lorenzo was not able to file an

exception request as her employer would not accept it; (2)

Plaintiff Donofrio submitted an exception request on September 28,

2021; (3) Plaintiff Smith submitted an exception request on

September 15, 2021; and (4) Plaintiff Garwood filed an exception

request on September 15, 2021. (Id.). All submitted requests remain

pending. (Id.)

1 The Court expressed serious concerns regarding the Plaintiffs’

seemingly purposeful failure to previously disclose this

information.

III. PARTIES’ ARGUMENTS

A. Plaintiffs’ Arguments

Plaintiffs do not dispute that the Supreme Court’s decision

in Jacobson v. Massachusetts, 197 U.S. 11 (1905), which has been

relied upon by many courts in reviewing employer mandates for

COVID-19 vaccination, is controlling precedent by which this Court

is bound. Rather, Plaintiffs argue Jacobson does not apply because

the COVID-19 vaccines are not actually vaccines “because they do

not fall under any relevant statutory definition or traditional

dictionary definition of the word ‘vaccine.’” (ECF No. 2, “Amended

Complaint” ¶¶ 31-47). Instead, Plaintiffs allege they are “gene

therapy products.” (Id.). Plaintiffs therefore argue that the

Court should apply strict scrutiny in reviewing the Executive

Orders. (ECF No. 4, “Pl. Moving Br.” at 5).

Plaintiffs argue that the Executive Orders violate the Due

Process Clause of the Fifth Amendment because they intrude on

Plaintiffs’ fundamental rights of liberty and privacy to make their

own healthcare decisions and decline unwanted medical procedures.

(Id. at 8). Plaintiffs argue that the Executive Orders cannot

survive strict scrutiny because even if it is assumed that the

government has a compelling interest in combating the spread of

COVID-19 and protecting the health of its citizens, the Plaintiffs’

liberty and privacy rights are stronger and more compelling than

that of the government. (Id. at 12-26). In support, Plaintiffs

argue: (1) there is uncertainty concerning the efficacy and

duration of protection of the vaccines; (2) the vaccines are

experimental and novel in nature; (3) the vaccines carry risks;

(4) the vaccines are likely to cause short-term illness; (5) the

vaccines are manufactured by corporations they allege have

extensive criminal records or no track record; (6) the U.S. Food

and Drug Administration, the agency tasked with ensuring

pharmaceutical safety, is plagued with scandals and failures; (7)

the Executive Orders are not narrowly tailored as they fail to

adequately consider “natural immunity”; (8) there are a wide range

of treatments for COVID-19 available; (9) there is a low infection

fatality rate for COVID-19; and (10) the government has navigated

similar viruses without mandating vaccination. (Id. at 13-26).

Plaintiffs further argue in the proposed Second Amended

Complaint that the mandates “create two groups of people and set

forth government-mandated different treatment between the groups

. . . based on Plaintiffs’ exercise of a fundamental right.” (ECF

No. 13-2, “Second Amended Complaint” ¶ 27).

Plaintiffs argue that they face irreparable harm in that they

are at risk of becoming unemployed and will be “unemployable in

two-thirds of existing jobs.” (ECF No. 4, “Pl. Moving Br.” at 7).

Plaintiffs argue that granting injunctive relief will preserve the

status quo and pose no harm to the government. (Id.).

B. Defendant’s Opposition

Defendant argues that this Court lacks jurisdiction and/or

Plaintiffs have no standing to assert claims seeking declaratory

or injunctive relief against the President in his official

capacity. (ECF No. 4, “Def. Opp. Br.” at 11-13). Defendant further

argues that the Civil Service Reform Act (“CSRA”) precludes

Plaintiffs from bringing their claims in this Court. (Id. at 13-

15). Finally, Defendant argues that Plaintiffs’ claims are not

ripe as they have neither sought nor been denied an exemption from

the mandate and they have not been subject to or notified of any

discipline as of this date. (Id. at 16-18).

Defendant further argues that injunctive relief is not

warranted as Plaintiffs are not likely to succeed on the merits of

their claims. Defendant argues that vaccine mandates have long

survived rational basis review under Jacobson, (id. at 18-29);

that Plaintiffs have failed to show irreparable harm, (id. at 29-

37); and that the balance of equities and public interest in

stemming the spread of COVID-19 far outweigh any alleged harm by

Plaintiffs, (id. at 37-41).

C. Plaintiffs’ Reply

In Plaintiffs’ reply, Plaintiffs claim that the well-

established exception for mandatory vaccinations is limited to

instances of the reasonable exercise of a state’s police power and

that the federal government has no such power. (ECF No. 12, “Pl.

Reply” at 4-6). Plaintiffs further allege the unconstitutional

conditions doctrine establishes irreparable harm as the coercion

to be vaccinated is the irreparable harm. (Id. at 3-4, 8).

Plaintiffs argue that their claims are ripe, that the CSRA does

not apply since no adverse employment action has yet occurred, and

that they should not have to wait for adverse employment action to

be taken in order to challenge the mandates. (Id. at 8-9, n.1).

Plaintiffs further argue that as to Plaintiff Lorenzo, “who is

subject to the Contractor Mandate, it is not clear who she could

enjoin other than the President himself” and urge the Court to

enjoin the President from enforcing the mandate. (Id. at 9-13).

IV. LEGAL STANDARD

Federal Rule of Civil Procedure 65 governs the issuance of

temporary restraining orders and preliminary injunctions. FED. R.

CIV. P. 65; Vuitton v. White, 945 F.2d 569, 573 (3d Cir. 1991).

Preliminary injunctive relief is “an extraordinary remedy”

and “should be granted only in limited circumstances.” American

Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421,

1427 (3d Cir. 1994) (quoting Frank’s GMC Truck Center, Inc. v.

General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)). To obtain

relief, the moving party must show: (1) a likelihood of success on

the merits; (2) he or she will suffer irreparable harm if the

injunction is denied; (3) granting relief will not result in even

greater harm to the nonmoving party; and (4) the public interest

favors such relief. Child Evangelism Fellowship of N.J. Inc. v.

Stafford Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004).

While courts must balance all four factors, Kershner v.

Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982), this Circuit has

placed significant weight “on the probability of irreparable harm

and the likelihood of success on the merits” factors. FM 103.1,

Inc. v. Universal Broad., 929 F. Supp. 187, 193 (D.N.J. 1996)

(quoting Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197

(3d Cir. 1990)). A court should only issue an injunction “if the

plaintiff produces evidence to convince the district court that

all four factors favor preliminary relief.” AT&T v. Winback &

Conserve Program, 42 F.3d 1421, 1427 (3d Cir. 1994).

V. DISCUSSION

A. Jurisdiction, Standing and Ripeness

(1) Ripeness

Defendant argues the Plaintiffs’ claims are not ripe because

Plaintiffs have not been terminated and/or no decision has been

issued as to their request for an exception.

The ripeness doctrine limits judicial power to resolve actual

cases and controversies, prohibiting courts from resolving

hypothetical or speculative disputes. U.S. CONST. art. III, § 2.

Reviewing ripeness is a two-step evaluation: the hardship of

denying review and whether the issues are fit for review. Abbott

Labs. v. Gardner, 387 U.S. 136, 149 (1969). The hardship of denying

review requires a threat of constitutional injury that is

“credible,” and not merely “speculative.” Artway v. Attorney Gen.,

81 F.3d 1235, 1247 (3d Cir. 1996). The moving party “need not have

suffered a ‘completed harm’” in order to present a ripe claim,

Presbytery of the Orthodox Presbyterian Church v. Florio, 40 F.3d

1454, 1463 (3d Cir. 1994) (citing Armstrong World Industries, Inc.

v. Adams, 961 F.2d 405, 412 (3d Cir. 1992)), simply one that is

“certainly impending,” Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983). “[W]hen the

plaintiff has alleged an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed

by a statute, and there exists a credible threat of prosecution

thereunder, he should not be required to await and undergo a

criminal prosecution as the sole means of seeking relief.” Artway,

81 F.3d at 1247 (quoting Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979)). The second factor for evaluating

ripeness is whether the issue is fit for judicial review. Abbott

Labs., 387 U.S. at 149. “The principal consideration is whether

the record is factually adequate to enable the court to make the

necessary legal determinations. The more that the question

presented is purely one of law, and the less that additional facts

will aid the court in its inquiry, the more likely the issue is to

be ripe, and vice-versa.” Artway, 81 F.3d at 1249.

The Court finds the claims of the Plaintiffs ripe for review.

Plaintiffs seek to enjoin the entire process set forth in Executive

Orders 14042 and 14043, including the exception process. The

contractor Plaintiff alleges she has been precluded from

submitting an exception to her employer and thus faces the choice

of compliance or potential loss of employment. Thus, the Plaintiffs

have alleged a course of conduct and there exists a credible threat

of adverse action. Further, the case presents a pure legal question

and the record is adequate. See, e.g., Messina v. The College of

N.J., 2021 WL 4786114, at *3 (D.N.J. Oct. 14, 2021) (deciding

application for injunctive relief in case involving COVID-19

vaccine mandate issued by university where the plaintiffs had

received exemptions from the vaccine requirement); Bauer v.

Summey, 2021 WL 4900922, at *2 (D.S.C. Oct. 21, 2021) (deciding

application for injunctive relief in case involving COVID-19

vaccine mandate issued by employer where plaintiffs’ requests for

exemptions remained pending); Klaasen v. Trustees of Indiana

Univ., 2021 WL 4073926, at *14-15 (N.D. Ind. 2021)(deciding issues

of standing related to COVID-19 vaccine mandate challenge where

some plaintiffs sought and received an exception and others had

not). The Court finds this factor is more appropriately considered

in the context of irreparable harm.

(2) Injunctive Relief Against the President

As Defendant has argued, “a court -- whether via injunctive

or declaratory relief -- does not sit in judgment of a President’s

executive decisions.” Newdow v. Roberts, 603 F.3d 1002, 1012 (D.C.

Cir. 2010) (citing Mississippi v. Johnson, 71 U.S. (4 Wall.) 475,

499 (1867)). “An attempt on the part of the judicial department

. . . to enforce the performance of [executive and political]

duties by the President [is] ‘an absurd and excessive

extravagance.’” Mississippi, 71 U.S. (4 Wall) at 499. In Franklin

v. Massachusetts, the Supreme Court declined to determine whether

jurisdiction exists to enjoin the President; however, the Court’s

decision and language left open the avenue to claim jurisdiction

in suits against heads of Executive agencies. 505 U.S. 788, 802-

03 (1992). For purposes of this Motion, the Court considers

Defendant’s argument in this regard moot as to the claims brought

by the employee Plaintiffs since the Second Amended Complaint

proposes to name their employing agencies as defendants.

However, the filing of the proposed Second Amended Complaint

does not cure this defect as to Plaintiff Lorenzo, whose claims

lie solely against the President. Plaintiff Lorenzo claims “it is

not clear who she could enjoin other than the President himself.

She only knows that she has been told she is subject to the Mandate

because Horizon BlueCross Blue Shield holds government contracts.”

(ECF No. 12, “Pl. Reply” at 11). Plaintiff provides no legal

authority by which this Court could grant injunctive relief against

the President because she cannot determine the proper defendant

against whom to bring suit. As such, the Court finds it lacks

jurisdiction over the contractor Plaintiff’s claims and/or she

fails to state a claim upon which injunctive relief can be granted.

Therefore, the remainder of this Opinion will only address the

employee Plaintiffs’ claims under Executive Order 14043 and will

not address Executive Order 14042.

(3) The Civil Service Reform Act

Defendant argues that the claims of the employee Plaintiffs

are precluded by failure to exhaust their administrative remedies

under the CSRA. Congress enacted the CSRA to create “a framework

for evaluating personnel actions taken against federal employees.”

Kloeckner v. Solis, 568 U.S. 41, 44 (2012). The “comprehensive and

exclusive” remedial scheme, Grosdidier v. Chairman, Broad. Bd. of

Governors, 560 F.3d 495, 497 (D.C. Cir.), cert. denied, 558 U.S

989 (2009), enumerates thirteen “prohibited personnel practices,”

which, if taken against a federal employee, must be brought before

the Office of Special Counsel (“OSC”) in the first instance, 5

U.S.C. § 2302(b). If OSC determines that there are reasonable

grounds to believe that a violation has occurred, then it “shall

report the determination together with any findings or

recommendations” to the Merit Systems Protection Board (“MSPB”)

and the employing agency. Id. § 1214(b)(2)(B). Only if the employee

exhausts this administrative procedure and does not prevail before

the MSPB, may they pursue judicial review in the Federal Circuit.

Id. §§ 1214(c), 7703(a)(1).

However, in this case adverse action is being threatened but

has not yet been taken against the employee Plaintiffs. The

Plaintiffs do not, as of yet, have cognizable claims to be brought

under the CSRA. It is further illogical to suggest that the

subordinate agencies of the Executive Branch have exclusive

jurisdiction to determine whether an Executive Order issued by the

President, that they have been directed to implement, is

constitutional. Thus, the Court rejects the Defendant’s argument

that the claims of the employee Plaintiffs are barred by the CSRA.

B. Injunctive Relief

(1) Likelihood of Success on the Merits

Based upon Jacobson, as well as persuasive authority from

other circuits which have addressed employer mandates for the

COVID-19 vaccine, this Court concludes that the employee

Plaintiffs have not met their burden to show they are likely to

succeed on the merits.

In Jacobson, the seminal case regarding vaccine mandates, the

Supreme Court upheld a Massachusetts statute which authorized the

board of health of any town to require citizens to be vaccinated

against smallpox as necessary for the public health and safety.

Jacobson, 197 U.S. at 12. Jacobson refused to be vaccinated and

was criminally charged and convicted. Id. at 13. On appeal,

Jacobson argued that the vaccine mandate violated his

constitutional rights. Id. at 26. The Supreme Court rejected

Jacobson’s arguments and held that the State had the right to

impose vaccine mandates. Id. at 27. The Court noted “in every well-

ordered society charged with the duty of conserving the safety of

its members the rights of the individual with respect of his

liberty may, at times, under pressure of great dangers, be

subjected to such restraint to be enforced by reasonable

regulations as the safety of the general public may demand.” Id.

at 29. Based upon Jacobson, courts across the country have held

that there is no fundamental right to refuse a COVID-19

vaccination. Indeed, every court that has considered the

constitutionality of a COVID-19 vaccine mandate by an employer or

university has deemed Jacobson controlling, rejected claims of a

fundamental right to refuse a vaccine, and applied a rational basis

standard of review. See, e.g., Norris v. Stanley, 2021 WL 4738827,

at *2-3 (W.D. Mich. Oct. 8, 2021); Messina, 2021 WL 4786114, at

*8-9; Does 1-6 v. Mills, 2021 WL 4783626, at *12-13 (D. Me. Oct.

13, 2021); Mass. Corr. Officers Fed. Union v. Baker, 2021 WL

4822154, at *6-7 (D. Mass. Oct. 15, 2021); Williams v. Brown, 2021

WL 4894264, at *8-9 (D. Or. Oct. 19, 2021).

Plaintiffs argue that Jacobson does not apply and strict

scrutiny review applies because (1) the COVID-19 vaccines are not

actually vaccines but are “gene therapy products” and (2) the

federal government lacks police power. Both arguments fail.

First, Plaintiffs provide no medical authority or competent

evidence to support the argument that COVID-19 vaccines are not

actually vaccines. In addition, courts have rejected such

arguments. See Messina, 2021 WL 4786114, at *7-8.

Second, Plaintiffs’ argument that Jacobson does not apply

because the federal government lacks police power fails because

the government’s role and source of authority in this case is that

of an employer under 5 U.S.C §§ 3301, 3302, 7301. See We the

Patriots, USA, Inc. v. Hochul, 2021 WL 5121983, at *18 (2nd Cir.

Nov. 4, 2021) (finding the state’s actions as an employer in

mandating public employee vaccination to be “considerably

narrower” than the city-wide mandate in Jacobson). It has long

been recognized that when the government acts as an employer,

“there is a crucial difference, with respect to constitutional

analysis, between the government exercising ‘the power to regulate

or license, as lawmaker,’ and the government acting ‘as proprietor,

to manage [its] internal operation.’” Engquist v. Or. Dept. of

Agr., 553 U.S. 591, 598 (2008) (quoting Cafeteria & Rest. Wkrs. v.

McElroy, 367 U.S. 886, 896 (1961)). There are “unique

considerations applicable when the government acts as employer as

opposed to sovereign.” Id. at 598. The government has both “far

broader powers,” Waters v. Churchill, 511 U.S. 661, 671 (1994),

and “significantly greater leeway in its dealings with citizen

employees than it does when it brings its sovereign power to bear

on citizens at large,” Engquist, 553 U.S. at 598; see also Kelley

v. Johnson, 425 U.S. 238, 244-48 (1976) (stating the government’s

role as employer is “highly significant” and applying essentially

a rational basis test in such circumstances). “The extra power the

government has in this area comes from the nature of the

government’s mission as employer.” Engquist, 553 U.S. at 598. The

Supreme Court has explained,

The government’s interest in achieving its

goals as effectively and efficiently as

possible is elevated from a relatively

subordinate interest when it acts as sovereign

to a significant one when it acts as employer.

Given the commonsense realization that

government offices could not function if every

employment decision became a constitutional

matter, constitutional review of government

employment decisions must rest on different

principles than review of restraints imposed

by the government as sovereign.

Id. at 598-99 (citations and quotations omitted); see also Mahoney

v. Sessions, 817 F.3d 9305, 879-880 (9th Cir. 2017) (discussing

the lesser standard of review of constitutional claims when the

government is not acting as a sovereign lawmaker); Bonidy v. U.S.

Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015) (applying lesser

standard of review where USPS prohibited firearms on Postal

Property and stating “[a]s a government-owned business acting as

a proprietor rather than as a sovereign, the USPS has broad

discretion to govern its business operations according to the rules

it deems appropriate”); Wasatch Equality v. Alta Ski Lifts Co., 55

F. Supp. 3d 1351, 1362-64 (D. Utah 2014) (applying lesser standard

of review where the federal government is acting as the owner of

Its property and not as a lawmaker).

Thus, contrary to Plaintiffs’ arguments, the Court finds that

the federal government has at least as much, if not broader, power

and deference in this instance where it is acting as an employer

than the State of Massachusetts had in Jacobson in exercising its

police power. See Mass. Corr. Officers Fed. Union, 2021 WL 4822154,

at *6-7 (applying rational basis test to review COVID-19 mandate

for State employees based on the State’s status as an employer).

As such, the Court finds rational basis review applies.

Under rational basis review, the action of the government

“need only be rationally related to a legitimate government

interest.” Wilce v. Dir., Off. of Workers’ Comp. Programs, 144 F.

App’x 223, 226 (3d Cir. 2005) (citing Heller v. Doe, 509 U.S. 312,

320 (1993)). There is a presumption of constitutionality and “the

burden is on the one attacking [it] to negative every conceivable

basis which might support it.” Heller, 509 U.S. at 320 (quotation

omitted). Here, there can be no serious question that the

government has a legitimate interest in preventing the spread of

COVID-19. The Supreme Court has described the government’s

interest in combating the spread of COVID-19 as “compelling.” S.

Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614

(2020); see also Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.

Ct. 63, 67 (2020) (describing curbing the spread of COVID-19 as

“unquestionably a compelling interest”). Indeed, Plaintiffs assume

for purposes of this motion that the government’s interest is

compelling. (ECF No. 4, “Pl. Moving Br.” at 12). Thus, the only

question is whether the mandates are rationally related to the

government’s interest in stemming the spread of COVID-19. This

Court, like every other Court that has considered the issue to

date, easily concludes that such a rational relationship exists -

– vaccines are a safe and effective way to prevent the spread of

COVID-19. Courts have repeatedly refused to enjoin an employer’s

COVID-19 vaccine mandate, provided they contain legally required

exemptions, finding they pass muster under the rational basis test.

See, e.g., Mass. Corr. Officers Fed. Union, 2021 WL 4822154, at

*8; Does 1-6, 2021 WL 4783626, at *18; Harsman v. Cincinnati

Child.’s Hosp. Med. Ctr., 2021 WL 4504245, at *6 (S.D. Ohio Sept.

30, 2021); Norris, 2021 WL 4738827, at *4; Williams, 2021 WL

4894262, at *11; Maniscalo v. The N.Y.C. Dept. of Ed., 2021 WL

4344267, at *6 (E.D.N.Y. Sept. 23, 2021); Andrew-Rodney v. Hochul,

2021 WL 5050067, at *9 (N.D.N.Y. Nov. 1, 2021); Johnson v. Brown,

2021 WL 4846060, at *27 (D. Or. Oct. 18, 2021); Kehearty v. Regents

of Cal., 2021 WL 4714664, at *9 (C.D. Cal. Sept. 29, 2021); see

also We the Patriots, 2021 WL 5121983 at *21. Plaintiffs provide

no legal or factual basis to distinguish the federal government’s

issuance of a vaccine mandate for its workforce from that of any

other employer that has taken the same action or to compel a

different result in this case.

Plaintiffs also fail to show a likelihood of success on the

merits as to their equal protection claim alleged in Count Two of

the proposed Second Amended Complaint. The first step to evaluate

an equal protection claim is to determine the standard of review.

Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993). Since

Plaintiffs’ claims do not involve a suspect class or fundamental

right, the same rational basis standard of review applies. Id.

Thus, for the same reasons set forth above, Plaintiffs are not

likely to succeed on the merits of this claim. See Does 1-6, 2021

WL 4783626, at *16 (applying rational basis review to equal

protection claim by employees related to employer’s COVID-19

mandate).

For all these reasons, the employee Plaintiffs have failed to

show they are likely to succeed on the merits.

(2) Irreparable Harm

Consideration of the irreparable harm factor heavily weighs

against injunctive relief. Irreparable harm is defined as

“potential harm which cannot be redressed by a legal or an

equitable remedy following a trial.” Instant Air Freight Co. v.

C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). As such,

“the preliminary injunction must be the only way of protecting

plaintiff from harm.” Id. The harm alleged by the employee

Plaintiffs is that they would be required to “undergo an

irreversible medical procedure that carries risk or lose their

jobs and become effectively disqualified from two-thirds of

American jobs. Either road constitutes irreparable harm.” (ECF No.

4, “Pl. Moving Br.” at 27-28). As a preliminary matter, the fact

that one or more of the Plaintiffs have sought exceptions negates

any imminent harm, let alone irreparable harm, since the most

recent guidance indicates agencies should refrain from initiating

enforcement action if the employee has received an exception and/or

the agency is considering an exception request from the employee.

U.S. OFFICE OF PERSONNEL MANAGEMENT, Guidance on Enforcement of

Coronavirus Disease 2019 Vaccination Requirements for Federal

Employees – Executive Order 14043 (2021).

Plaintiffs argue the unconstitutional conditions doctrine

applies and that the coercion itself is the irreparable harm. (ECF

No. 12, “Pl. Reply” at 1). Plaintiffs are undeniably being

presented with a difficult choice -– comply with the vaccine

mandate or risk losing their employment. They are, however,

presented with a choice and are not being coerced to give up a

fundamental right since there is no fundamental right to refuse

vaccination. See Klaasen, 2021 WL 4073926, at *23-26 (rejecting

student’s argument that university’s vaccine mandate violated the

unconstitutional conditions doctrine); Norris, 2021 WL 4738827, at

*3 (rejecting employee’s unconstitutional conditions argument

because a vaccine mandate does not violate a fundamental right);

Andre-Rodney, 2021 WL 5050067, at *7 (same).2

Further, Plaintiffs ignore well established precedent that

“loss of employment itself is not sufficient to give rise to

irreparable injury.” Hong Zhuang v. EMD Performance Materials

Corp., 2018 WL 3814282, at *11 (D.N.J. Aug. 10, 2018); see also

Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974). To date, every

court that has considered the allegation that the potential loss

of employment due to an employee’s decision not to comply with an

employer’s COVID-19 vaccine mandate constitutes irreparable harm

has rejected it. See, e.g., Harsman, 2021 WL 4504245, at *4;

Norris, 2021 WL 4738827, at *3; Williams, 2021 WL 4894262, at *10-

11; Mass. Corr. Officers Fed. Union, 2021 WL 4822154, at *7-8;

Does 1-6, 2021 WL 2782626, at *16-17; Andre-Rodney, 2021 WL

5050067, at *8. This Court agrees and finds no factual or legal

reason to depart from this well-established precedent.

Finally, the fact that Plaintiffs waited nearly two (2) months

to seek relief dispels any claim of irreparable harm. The Executive

Orders were issued on September 9, 2021. Plaintiffs did not file

a Complaint until October 29, 2021 and did not file a motion for

2 The Court agrees with the Defendant that Plaintiffs’ comparison

of the vaccine mandate to forcible and invasive medical procedures

is misplaced. See Klaasen, 2021 WL 3072926, at *25. The mandates

do not force Plaintiffs to receive a medical procedure. Rather,

they may seek an exemption or may choose to seek other employment.

injunctive relief until November 3, 2021, just five (5) days prior

to the date by which they must receive the vaccine in order to

comply with the mandate. “[P]reliminary injunctions are generally

granted under the theory that there is an urgent need for speedy

action to protect the plaintiffs’ rights. Delay in seeking

enforcement of those rights . . . tends to indicate at least a

reduced need for such drastic, speedy action.” Lanin v. Borough of

Tenafly, 2013 WL 936363, at *3 (3d Cir. 2013) (quoting Citibank,

N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985)); see also

Messina, 2021 WL 4786114, at *9 (considering Plaintiff’s delay in

seeking injunctive relief related to COVID-19 mandates for college

students as negating irreparable harm); Child.’s Health Defense,

Inc. v. Rutgers, the State Univ. of N.J., 2021 WL 4398743, at *7

(D.N.J. Sept. 27, 2021) (same). Plaintiffs offer no excuse for

their delay in seeking relief in this case.3

For all these reasons, the employee Plaintiffs fail to show

irreparable harm.

(3) Balance of Equities and Public Interest

The third and fourth factors for the issuance of injunctive

relief merge when the government is the opposing party. Nken v.

3 Even assuming the contractor Plaintiff identified an appropriate

defendant against whom the Court could issue injunctive relief,

her claim would nevertheless fail as she too cannot show

irreparable harm.

Holder, 556 U.S. 418, 435 (2009). Given the Court’s findings as to

the likelihood of success on the merits and irreparable harm

factors, the Court will only briefly address these factors. The

federal government employs over 4 million people. Julie Jennings

& Jared C. Nagel, CONG. RSCH. SERV., R43590, Federal Workforce

Statistics Sources: OPM and OMB 17 (2021). The stated goal of the

vaccine mandate is to prevent the spread of COVID-19 and keep

people safe. Exec. Order No. 14043, 86 Fed. Reg. 50989 (Sept. 9,

2021). As stated in Executive Order 14043, “[t]he health and safety

of the Federal workforce, and the health and safety of the members

of the public with whom they interact, are foundational to the

efficiency of the civil service.” Exec. Order No. 14043, 86 Fed.

Reg. 50989 (Sept. 9, 2021). Given the ongoing COVID-19 pandemic,

the balance of equities and public interest far outweigh the

interests of the employee Plaintiffs. In this case, the granting

of injunctive relief would likely increase the risk of harm to the

public.

VI. CONCLUSION

For the reasons set forth above, the Court has no authority

to enjoin any action by the President as to any of the Plaintiffs’

claims. Further, the employee Plaintiffs have not met their burden

to show that a temporary restraining order and/or preliminary

injunction is warranted. As such, Plaintiffs’ motion is denied. An

appropriate order will follow.

Dated: 11/8/2021 s/ Christine P. O’Hearn

United States District Judge