# SMITH v. BIDEN

> District Court, D. New Jersey · November 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10271866

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10271866

## How later opinions describe it (automated extraction)

- applying lesser standard of review where the federal government is acting as the owner of Its property and not as a lawmaker
- describing curbing the spread of COVID-19 as “unquestionably a compelling interest”
- stating the government’s role as employer is “highly significant” and applying essentially a rational basis test in such circumstances

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10271866. Public record. Not legal advice.