# Williams v. Brown

> District Court, D. Oregon · October 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10394019

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JOSHUA WILLIAMS; JENNIFER Civ. No. 6:21-cv-01332-AA
LEWIS; MICHAEL MILLER;
PHILLIP KEARNEY; JAY HICKS;
JANNA COCHRAN; JULIE ANN
SUDERMAN,

Plaintiffs, OPINION & ORDER
v.

KATE BROWN; PATRICK ALLEN;
OREGON HEALTH AUTHORITY,

Defendants.
_______________________________________

AIKEN, District Judge.

This case comes before the Court on Plaintiffs’ Emergency Motion for
Temporary Restraining Order. ECF No. 11. The Court heard oral argument on
October 18, 2021 by telephone. ECF No. 19. For the reasons set forth below, the
motion is DENIED.
LEGAL STANDARD
“In deciding whether to grant a motion for a temporary restraining order
(“TRO”), courts look to substantially the same factors that apply to a court’s decision
on whether to issue a preliminary injunction. Pacific Kidney & Hypertension, LLC
v. Kassakian, 156 F. Supp.3d 1219. 1222 (D. Or. 2016). A preliminary injunction is
an “extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
22 (2008). A plaintiff seeking a preliminary injunction must show (1) that he or she

is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in
the absence of preliminary relief; (3) the balance of the equities tips in his or her
favor; and (4) an injunction is in the public interest. Id. at 20.
In the Ninth Circuit, courts may apply an alternative “serious questions” test,
which allows for a preliminary injunction where a plaintiff shows that “serious
questions going to the merits” were raised and the balance of hardships tips sharply
in plaintiff’s favor, assuming the other two elements of the Winter test are met.

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). This
formulation applies a sliding scale approach where a stronger showing of one element
may offset a weaker showing in another element. Id. at 1131. Nevertheless, the
party requesting a preliminary injunction must carry its burden of persuasion by a
“clear showing” of the four elements set forth above. Lopez v. Brewer, 680 F.3d 1068,
1072 (9th Cir. 2012).

BACKROUND
I. COVID-19 and the Vaccines
COVID-19 is an infectious disease caused by the virus SARS CoV-2. Sutton
Decl. ¶ 4.1 ECF No. 14. COVID-19 is highly transmissible, primarily through

1 Dr. Melissa Sutton is the Medical Director of Respiratory Viral Pathogens in the Public Health
Division of the Oregon Health Authority. Sutton Decl. ¶ 1. Dr. Sutton is a board-certified physician
with a master’s degree in public health in epidemiology in addition to her medical doctorate. Id. at ¶
2. Plaintiffs have not submitted any contrary declaration by a medical expert. In support of their
respiratory droplet transmission. Id. at ¶¶ 4-6. The virus also mutates as it
replicates and produces variants which “may have characteristics of public health
consequence, such as evidence of increased transmissibility, evidence of increased

disease severity, and reduced effectiveness of diagnostics, treatments, or vaccines.”
Id. at ¶ 7.
In June 2021, the Delta variant of the COVID-19 virus emerged as a “variant
of concern” and is approximately twice as contagious as earlier variants of the virus.
Sutton Decl. ¶ 7. As of October 7, 2021, the U.S. Centers for Disease Control and
Prevention (“CDC”) have confirmed more than 43.9 million cases of COVID-19 in the
United States, and 707,065 people have died of COVID-19. Id. at ¶ 9. In Oregon, the

CDC reports that there have been 338,130 cases of COVID-19 and 3,900 Oregonians
have died of the disease as of October 6, 2021. Id. The number of COVID-19 cases
peaked in Oregon in August and September of 2021 with more than 1,178 Oregonians
hospitalized with COVID-19 on September 1, 2021. Id. at ¶¶ 8-10. “This represented
a more than two-fold increase over the previous peak of 584 on November 30, 2020.”
Id. at ¶ 10.

The surge in COVID-19 cases put enormous pressure on Oregon’s medical
resources and infrastructure. “Caring for this large number of patients with COVID-

Reply, Plaintiffs submitted a Declaration by their counsel, which included an attached exhibit of a
document filed in Zywicki v. Gregory Washington et al., Case No. 1:21-cv-00894-AJT-MSN in U.S.
District Court for the Eastern District of Virginia. ECF No. 18. This document does not meet the
requirements for an affidavit or declaration as set forth in Local Rule 10-3 in that it is unsigned, not
filed separately, and does not present itself as being offered under penalty of perjury. The Court’s
review of the docket of the Zywicki matter indicates that this document was originally attached as
an exhibit to the complaint in Zywicki and that the Zywicki case was voluntarily dismissed on
August 20, 2021, approximately two weeks after it was filed.
19 along with other patients presenting for care has strained the ability of hospitals
to provide care for everyone, forcing most to postpone non-urgent care, and leaving
many people in Oregon suffering as they wait for non-urgent procedures, such as hip

transplants.” Sutton Decl. ¶ 10. Aside from the risk of death, “[i]ndividuals who
contract COVID-19 may suffer prolonged illness with severe complications, such as
heart attack, stroke, blood clots and respiratory failure as well as long-term post-
COVID conditions.” Id. at ¶ 20.
“Vaccination remains the most effective tool to reduce the spread of COVID-
19.” Sutton Decl. ¶ 13. “There are currently three safe and highly effective
vaccinations available for use in the United States from Pfizer BioNTech, Moderna

and Johnson & Johnson/Janssen.” Id. at ¶ 11. The Pfizer vaccine was granted official
approval by the FDA on August 23, 2021, and the Moderna and Johnson & Johnson
vaccines are approved under an emergency use authorization for individuals 18 years
of age and older. Id. The CDC recommends that all individuals aged 12 and older be
vaccinated against COVID-19. Id. “Vaccines protect individuals who are vaccinated
as well as those around them as vaccinated individuals are much less likely to become

infected with COVID-19 and transmit this infection to others,” which “is especially
important when the surrounding individuals are unvaccinated such as children
younger than 12 years of age who are not yet eligible for COVID-19 vaccinations or
individuals at high risk of complications because of underlying medical conditions.”
Id. at ¶ 13.
“Unvaccinated individuals exposed to COVID-19 are very likely to become
infected in the absence of mitigation measures and may then transmit the virus to
others,” while “[f]ully vaccinated people get COVID-19 (known as vaccine

breakthrough infections) much less often than unvaccinated people.” Sutton Decl. ¶
7. In Oregon, 70% of adults have been vaccinated, which substantially reduced the
number of COVID-19 deaths during the surge in cases observed in August and
September of 2021. Id. at ¶10. An additional 5.8% of Oregonians have received one
dose of either the Moderna or Pfizer vaccine but have not yet received the second dose
and are considered partially vaccinated. Id. at ¶ 15. There are adequate supplies
available to vaccinate all eligible Oregonians. Id. at ¶ 11.

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

vaccinated” and “counties with higher vaccination rates are associated with lower
case rates.” Id. at ¶ 21.
The strength and duration of immunity following COVID-19 infection “is
poorly understood,” but the “majority of studies describing SARS-CoV-2 neutralizing
antibodies (antibodies which prevent viral replication and are considered a
measurement of immunity) are limited to three months following infection.” Sutton
Decl. ¶ 16. A study of the development of neutralizing antibodies following COVID-
19 infection “demonstrated that 12% of individuals did not develop neutralizing
antibodies and an additional 27% demonstrated rapid waning of neutralizing

antibodies” within 180 days of infection. Id. at ¶ 17. “The effectiveness and duration
of natural immunity may vary widely between individuals and a history of previous
infection may not provide durable protection against reinfection.” Id. “In a recent
study of the risk of reinfection among vaccinated and unvaccinated individuals
previously infected with COVID-19, unvaccinated individuals had twice the
reinfection rate of vaccinated individuals” and the CDC “recommends that all
individuals previously infected with COVID-19 be vaccinated to reduce the risk of

reinfection.” Id. at ¶ 19.
II. Oregon Vaccine Mandates
On August 13, 2021, Oregon Governor Kate Brown issued Executive Order
(“EO”) 21-29 which requires all employees and workers employed by the executive
branch of the Oregon state government to be fully vaccinated by October 18, 2021.
Employees who do not comply with the requirements of EO 21-29 “will face personnel

consequences up to and including separation from employment.” However, the state
will provide “reasonable accommodations” for “individuals unable to be vaccinated
due to disability, qualifying medical condition, or sincerely held religious belief.”
Requests for such exceptions are to be made in writing and the vaccination
requirement will not apply while such a request is pending or has been approved.
The Oregon Health Authority has also enacted administrative rules
mandating vaccination. Oregon Administrative Rule (“OAR”) 333-019-1010 provides
that healthcare providers and healthcare staff who work in a healthcare setting are

to be fully vaccinated by October 18, 2021 unless they have provided documentation
of a medical or religious exception. Medical exceptions “must be corroborated by a
document signed by a medical provider . . . certifying that the individual has a
physical or mental impairment that limits the individual’s ability to receive a COVID-
19 vaccination based on a specified medical diagnosis, and that specifies whether the
impairment is temporary in nature or permanent.” OAR 333-019-1010(4)(b)(A). A
religious exception “must be corroborated by a document . . . signed by the individual

stating that the individual is requesting an exception from the COVID-19 vaccination
requirement on the basis of a sincerely held religious belief and including a statement
describing the way in which the vaccination requirement conflicts with the religious
observance, practice, or belief of the individual.” OAR 333-019-1010(4)(b)(B).
“Employers of healthcare providers or healthcare staff, contractors, and responsible
parties who violate any provision of this rule are subject to civil penalties of $500 per

day per violation.” OAR 333-019-1010(9).
Oregon Administrative Rule 333-019-1030 requires teachers, school staff, and
volunteers to be fully vaccinated by October 18, 2021 unless they have provided
documentation of a medical or religious exception. OAR 333-019-1030(3). The
requirements of the medical and religious exceptions are identical to those set forth
in OAR 333-019-1010(4)(b). OAR 333-019-1030(4)(b). “Schools and school-based
programs that violate any provision of this rule are subject to civil penalties of $500
per day per violation.” OAR 333-019-1030(15).
III. Plaintiffs

Plaintiffs in this case are unvaccinated employees and workers who will be
subject to the requirements of one or more of the vaccine mandates described in the
previous section. Each Plaintiff has previously contracted and recovered from
COVID-19 and each believes that their infection-based immunity is at least as
effective as vaccination-based immunity. FAC ¶ 2.
Plaintiff Joshua Williams is an EMT in Marion County, Oregon and works as
the station chief for Aurora Fire & Rescue. FAC ¶ 19. Williams contracted COVID-

19 in January 2021 and has since recovered. Id. at ¶¶ 22-23. At oral argument,
Plaintiffs’ counsel advised the Court that Williams did not request an exception to
the vaccine mandate.
Plaintiff Jennifer Lewis is an office manager and treatment coordinator at
Klamath Falls Orthodontics in Klamath County, Oregon. FAC ¶ 25. Lewis
contracted COVID-19 in December 2020 and has since recovered. Id. at ¶¶ 27-28. At

oral argument, Plaintiffs’ counsel advised the Court that Lewis did not request an
exception to the vaccine mandate.
Plaintiff Michael Miller lives in Canyon County, Idaho and works as a
correctional officer with the Oregon Department of Corrections. FAC ¶ 31. Miller
contracted COVID-19 in November 2020 and has since recovered. Id. at ¶¶ 32-33. At
oral argument, Plaintiffs’ counsel advised the Court that Miller has requested an
exception to the vaccine mandate and the request remains pending.
Plaintiff Philip Kearney lives in Clackamas County, Oregon and works as an

assistant special agent of an investigatory unit of the Oregon Department of Justice.
FAC ¶ 37. Kearny contracted COVID-19 in “the spring of 2021” and has since
recovered. Id. at ¶¶ 38-39. Kearny has requested an exception from the vaccine
mandate based on a “moral objection to the vaccination” but had not received a
response as of the filing of the FAC. Id. at ¶ 40. At oral argument, Plaintiffs’ counsel
advised the Court that Kearny’s request for an exception has been approved.
Plaintiff Jay Hicks lives in Malheur County, Oregon and works as a corrections

officer for the Oregon Department of Corrections. FAC ¶ 41. Hicks contracted
COVID-19 in September 2020 and has since recovered. Id. at ¶¶ 42-43. Hicks’s
“doctor has advised him that it is medically unnecessary to obtain the COVID-19
vaccination and that his decision not to get the vaccine is medically advisable.” Id.
at ¶ 45. At oral argument, Plaintiffs’ counsel advised the Court that Hicks has
requested an exception to the vaccine mandate and the request was denied.

Plaintiff Janna Cochran lives in Washington County, Oregon and works for the
Willamette Education Service District as a special education teacher. FAC ¶ 47.
Cochran contracted COVID-19 in July 2020 and subsequently recovered. Id. at ¶ 48.
Cochran “has sincere moral objections to taking the COVID-19 vaccination and has
submitted a request for religious accommodation to her employer,” but had not
received a response as of the filing of the FAC. Id. at ¶ 51. At oral argument,
Plaintiffs’ counsel advised the Court that Cochran’s request for an exception had been
approved.
Plaintiff Julie Ann Suderman lives in Marion County, Oregon and “works in

education.” FAC ¶ 53. This allegation is so vague that the Court cannot determine
whether Suderman is even subject to any of the challenged vaccination mandates,
although Plaintiffs allege that Suderman’s unnamed employer “is enforcing the
Governor’s school vaccination mandate.” Id. at ¶ 58. Suderman contracted COVID-
19 in November 2020 and has since recovered. Id. at ¶ 54. Suderman’s personal
physician has advised her that “it is medically unnecessary for her to obtain the
vaccination, and recommended against her getting it.” Id. at ¶ 57. At oral argument,

Plaintiffs’ counsel advised the Court that Suderman had requested an exception to
the vaccine mandate and the request has been approved.
Plaintiffs do not wish to be vaccinated and have brought this action challenging
the requirement that they be vaccinated as a condition of their continued
employment. Plaintiffs filed this action on September 9, 2021. ECF No. 1. Plaintiffs
filed their First Amended Complaint and Motion for TRO on September 28, 2021.

ECF Nos. 10, 11. By joint request of the parties, the Court set oral argument for
October 18, 2021. ECF No. 12.
DISCUSSION
As relevant to the present motion, Plaintiffs bring claims for violation of their
rights to due process and equal protection under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983. Plaintiffs seek a TRO and preliminary injunction
“prohibiting Defendants Oregon Governor Kate Brown and the Oregon Health
Authority, with its Director Patrick Allen and all agents or employees, from enforcing
Executive Order 21-29 and OAR 333-019-1010, and OAR 333-019-1030 (‘vaccine

mandates’) by charging any fee or imposing any penalty for failure to obtain
verification or proof of a COVID-19 vaccination.” Pl. Mot. at 2. In the event their
Motion is denied, Plaintiffs also request that this Court issue an injunction pending
appeal.
As discussed in the following sections, the Court concludes that Plaintiffs have
failed to carry their burden on any of the Winter factors.
I. Likelihood of Success on the Merits

To prevail on a motion for preliminary injunction, a plaintiff must show either
a likelihood of eventual success on the merits or, under the Ninth Circuit’s alternative
“sliding scale” formulation of the test, serious questions going to the merits of their
claims. Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1131-32.
However, a court’s decision on a motion for preliminary injunction is not a ruling on
the merits of the claim. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415,

1422 (9th Cir. 1984).
A. Due Process Claims
The Due Process Clause of the Fourteenth Amendment provides that no state
shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. “To state a prima facie substantive or procedural due
process claim, one must, as a threshold matter, identify a liberty or property interest
protected by the Constitution.” United States v. Guillen-Cervantes, 748 F.3d 870, 872
(9th Cir. 2014).
1. Procedural Due Process

“The Due Process Clause forbids the governmental deprivation of substantive
rights without constitutionally adequate procedure.” Shanks v. Dressel, 540 F.3d
1082, 1090-91 (9th Cir. 2008). To prevail on a procedural due process claim, a plaintiff
must establish: (1) a constitutionally protected liberty or property interest; (2) a
deprivation of that interest by the government; and (3) a lack of adequate process.
Id. at 1090. However, “laws of general applicability affecting a broad geographic
area” do not ordinarily implicate individual procedural due process concerns. Hotel

& Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 968-70 (9th Cir. 2003);
Mendez v. City of Boise, 845 F. App’x 636, 637 (9th Cir. 2021). “General statutes
within the state power are passed that affect the person or property of individuals,
sometimes to the point of ruin, without giving them a chance to be heard,” and “[t]heir
rights are protected in the only way that they can be in a complex society, by their
power, immediate or remote, over those who make the rule.” Bi-Metallic Inv. Co. v.

State Bd. of Equalization, 239 U.S. 441, 445 (1915); see also Halverson v. Skagit Cnty.,
42 F.3d 1257, 1260 (9th Cir. 1994) (In cases involving laws of general applicability,
due process is satisfied when the governmental body “performs its responsibilities in
the manner normally prescribed by law.”); Underwood v. City of Starkville, ___F.
Supp.3d___, CIVIL ACTION NO. 1:20-CV-00085-GHD-DAS, 2021 WL 1894900, at *6
(N.D. Miss. May 11, 2021) (“It would be impractical—if not nonsensical—to allow
every individual member of the public to voice their opinion directly and personally
before a rule of general applicability is put into effect, particularly during a time of
crisis like [the COVID-19 pandemic.]”).

Although Plaintiffs object that the vaccine mandates are not “legislative” acts,
the Ninth Circuit has held that “[i]n determining when the dictates of due process
apply . . . we find little guidance in formalistic distinctions between ‘legislative’ and
‘adjudicatory’ or ‘administrative’ government actions,” and “the character of the
action, rather its label, determines whether those affected by it are entitled to
constitutional due process.” Harris v. Cnty. of Riverside, 904 F.2d 497, 501-02 (9th
Cir. 1990); see also Curlott v. Campbell, 598 F.2d 1175, 1181 (9th Cir. 1979) (“At the

outset we doubt very much that procedural due process prior to a reduction in benefits
is required when an agency made a broadly-applicable, legislative-type decision.”
(citing Bi-Metallic, 239 U.S. at 441)). “The proper remedy in those circumstances is
judicial review after promulgation of the new rule.” Curlott, 598 F.2d at 1181.
In this case, the vaccine mandates are plainly laws of broad applicability and
apply respectively to healthcare workers, school employees, and state executive

employees across Oregon. As the Ninth Circuit observed in Curlott, the “proper
remedy” to such rules is judicial review and these specific mandates have consistently
survived review by the Oregon state courts. See, e.g., Def. Resp. Ex. 3 (Oregon Court
of Appeals order denying a motion to stay enforcement of OAR 333-019-1010 in
Oregon Healthcare Workers for Medical Freedom v. Oregon Health Authority, Case
No. A176900); Ex. 4 (Crook County Circuit Court order denying a TRO and
preliminary injunction in Oregon Fraternal Order of Police v. Brown, Case No.
21CV35125). And to the extent that any process is required, the mandates
themselves provide a process for an employee to request individual exceptions for

medical reasons, disability, or sincerely held religious beliefs and several of the
Plaintiffs in this case have sought and received such exceptions.
Accordingly, the Court concludes that Plaintiffs have not demonstrated a
likelihood of success on the merits of their procedural due process claim, nor have
they demonstrated serious questions going to the merits of that claim.
2. Substantive Due Process
“Substantive due process protects individuals from arbitrary deprivation of

their liberty by government.” Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d
1189, 1195 (9th Cir. 2013). Only “the most egregious official conduct can be said to
be arbitrary in the constitutional sense.” Cnty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998) (internal quotation marks and citation omitted). “To constitute a violation
of substantive due process, the alleged deprivation must shock the conscience and
offend the community’s sense of fair play and decency.” Sylvia Landfield, 729 F.3d

at 1195 (internal quotation marks and citation omitted). The Supreme Court has
held “that the ‘shock the conscience’ standard is satisfied where the conduct was
intended to injure in some way unjustifiable by any government interest or in some
circumstances if it resulted from deliberate indifference.” Rosales-Mireles v. United
States, ___U.S.___, 138 S. Ct. 1897, 1906 (2018) (internal quotation marks and
citation omitted).
The Due Process Clause “provides heightened protection against government
interference with certain fundamental rights and liberty interests.” Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). The Supreme Court has established “a

threshold requirement—that a challenged state action implicate a fundamental
right—before requiring more than a reasonable relation to a legitimate state interest
to justify the action.” Id. at 722.
Here, Plaintiffs contend that the vaccine mandates implicate a fundamental
right to bodily integrity and privacy and that strict scrutiny should apply. Under
strict scrutiny, Plaintiffs contend that the Court should strike down vaccine
mandates because they do not provide an exception for individuals with infection-

based immunity and so are not narrowly tailored to achieve their purpose.
As the Seventh Circuit recently noted, “such an argument depends on the
existence of a fundamental right ingrained in the American legal tradition.” Klassen
v. Trustees of Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021). Plaintiffs’ argument
was foreclosed more than a century ago by Jacobson v. Massachusetts, 197 U.S. 11
(1905), in which the Supreme Court sustained a criminal conviction for refusing to be

vaccinated. In Jacobson, the appellant challenged a statute passed by the
Massachusetts legislature that authorized the board of health of any city or town to
require the vaccination of the town’s inhabitants, if it was necessary for public health
or safety. Jacobson, 197 U.S. at 12. Under that statute, the board of health for
Cambridge, Massachusetts issued a smallpox vaccine mandate and only allowed
exceptions for children. Id. at 12-13. The appellant, Jacobson, refused to be
vaccinated and was criminally charged and convicted by a jury. Id. at 13. On appeal,
Jacobson argued that the vaccine mandate violated his constitutional rights. Id. at
26.

The Supreme Court rejected Jacobson’s argument, holding that the exercise
of liberty has always been subject to restraints imposed for the good of the whole
commonwealth and that the police power of the state rests upon the ability to set
such restraints. Id. at 29. In the specific case of vaccination, the Court observed
that the Massachusetts legislature had conferred authority to impose vaccine
mandates on the local health board because of their “fitness to determine such
questions,” and that the delegation was not constitutionally improper. Id. at 27.

The Court observed that “in every well-ordered society charged with the duty of
conserving the safety of its members the rights of the individual in 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. The Court rejected the notion that a vaccine mandate violated
either the liberty interests secured by the due process clause of the Fourteenth

Amendment or the equal protection guarantees. Id. at 29-30. The Court also
observed that questions concerning the efficacy of vaccination as a means of disease
control was something considered by the state legislature in delegating authority to
the local health boards and Massachusetts “was not compelled to commit a matter
involving public health and safety to the final decision of a court or jury,” and
reserved the question of judicial involvement to instances where the states
undertake a “plain, palpable invasion of rights secured by the fundamental law”
under the guise of police powers or when they enact a statute purportedly for the
benefit of public health or safety but which “has no real or substantial relation to

those objects.” Id. at 30-31. “Whatever may be thought of the expediency of this
statute, it cannot be affirmed to be, beyond question, in palpable conflict with the
Constitution. Nor, in view of the methods employed to stamp out the disease of
smallpox, can anyone confidently assert that the means prescribed by the state to
that end has no real or substantial relation to the protection of public health and
the public safety.” Id. at 31. As the Supreme Court memorably summarized in its
conclusion:

We are unwilling to hold it to be an element of liberty secured by the
Constitution of the United States that one person, or a minority of
persons, residing in any community and enjoying the benefits of its
local government, should have the power thus to dominate the
majority when supported in their action by the authority of the state.
While this court should guard with firmness every right appertaining
to life, liberty, or property as secured to the individual by the supreme
law of the land, it is of the last importance that it should not invade
the domain of local authority except when it is plainly necessary to do
so in order to enforce that law. The safety and the health of the people
of Massachusetts are, in the first instance, for that commonwealth to
guard and protect. They are matters that do not ordinarily concern the
national government. So far as they can be reached by any
government, they depend, primarily upon such actions as the state, in
its wisdom, may take; and we do not perceive that this legislation has
invaded any right secured by the Federal Constitution.

Id. at 38-39.
In the context of COVID-19, courts across the country have concluded that
Jacobson established that there is no fundamental right to refuse vaccination. See,
e.g., Klassen, 7 F.4th at 593 (“Given Jacobson v. Massachusetts, which holds that a
state may require all members of the public to be vaccinated against smallpox, there
can’t be a constitutional problem with vaccination against SARS-CoV-2.” (internal
citation omitted)); Norris v. Stanley, ___F. Supp.3d___, No. 1:21-cv-756, 2021 WL

4738827, at *2 (W.D. Mich. Oct. 8, 2021) (“Plaintiff is absolutely correct that she
possesses those rights [to privacy and bodily integrity], but there is no fundamental
right to decline a vaccination.”); Johnson. v. Brown, Case No. 3:21-cv-1494-SI, 2021
WL 4846060, at *13 (D. Or. Oct. 18, 2021) (“As Jacobson reveals, the right to refuse
vaccination is not deeply rooted in this nation’s history. In fact, the opposite is true.”
(internal citation and quotation marks omitted)).
Courts have also consistently held that, following Jacobson, challenges to

vaccination mandates are properly considered under rational basis review. See, e.g.,
Kheriaty v. Regents of the Univ. of Cal., Case No. SACV 21-01367 JVS (KESx), 2021
WL 4714664, at *6 (C.D. Cal. Sept. 29, 2021) (“While the case predates the formalized
tiers of review, the [Supreme] Court later acknowledged that Jacobson ‘essentially
applied rational basis review.’” (quoting Roman Catholic Diocese of Brooklyn v.
Cuomo, ___U.S.___, 141 S. Ct. 63, 70 (2020) (Gorsuch, J. concurring)); Norris, 2021

WL 4738827, at *1 (“Because this Court finds no fundamental right is implicated in
the present matter, the Court must apply a rational basis standard.”); Johnson, 2021
WL 4846060, at *14 (“In sum, under Jacobson followed by over a century’s worth of
rulings with the consistent use of rational basis review to assess mandatory
vaccination measure, rational basis review applies to Plaintiffs’ claims in this case.”
(internal quotation marks and citations omitted)); Valdez v. Grisham, ___F.
Supp.3d___, Case No. 21-cv-783 MV/JHR, 2021 WL 4145746, at *5 (D.N.M. Sept. 13,
2021) (“Indeed, federal courts have consistently held that vaccine mandates do not
implicate a fundamental right and that rational basis review therefore applies in

determining the constitutionality of such mandates.”). The Court joins this growing
consensus and concludes that there is no fundamental right under the Constitution
to refuse vaccination and that rational basis review applies to Plaintiffs’ due process
challenge.
Under rational basis review, state conduct is presumed valid and will be
upheld so long as it is “rationally related to a legitimate state interest.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). “Governmental action is

rationally related to a legitimate goal unless the action is clearly arbitrary and
unreasonable, having no substantial relation to public health, safety, morals, or
general welfare.” Sylvia Landfield, 729 F.3d at 1193 (internal quotation marks and
citation omitted).
Applied to the present case, the Court has no trouble concluding that the
vaccine mandates are rationally related to a legitimate state interest. The preamble

to EO 21-29 sets forth the history of the COVID-19 pandemic in Oregon and the
efficacy of the vaccines before concluding: “With the Delta variant raging in Oregon,
with the state’s ability to fully return to in-person work continuing to be hampered
by the risks from COVID-19, having implemented a series of incentives aimed at
achieving voluntary compliance, and with full FDA approval of the COVID-19 vaccine
expected within weeks, the time has come for any remaining state employees and
those who work alongside them in state government to get vaccinated.” OAR 333-
019-1030 and OAR 333-019-1010 similarly open with preambles describing the need
for mandatory vaccination in order to control the spread of COVID-19 and to protect

both the specific groups subject to vaccination and the population at large. As Dr.
Sutton explained in her Declaration, the decision to extend this mandate to
employees and workers who have previously contracted COVID-19 was based on
evidence that infection-based immunity was not as durable or reliable as the
protection conferred by the vaccines and on the CDC’s recommendation that all
eligible people be vaccinated, regardless of prior infection.
As Judge Simon observed in another recent challenge to Oregon’s vaccine

mandates, the requirements imposed “are rationally related to Defendants’ interests
in slowing the spread of COVID-19, protecting Oregon’s citizens, protecting children
and teachers in schools, and preserving healthcare resources and protecting
patients.” Johnson, 2021 WL 4846060, at *14.
Because the vaccine mandates easily survive rational basis review, the Court
concludes that Plaintiffs have not shown a likelihood of success on the merits of their

claim for violation of their substantive due process rights, nor have they shown
serious questions going to the merits of that claim.
B. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that
no state shall deny to any person within its jurisdiction the equal protection of the
laws, which is essentially a direction that all persons similarly situated should be
treated alike.” City of Cleburne, 473 U.S. at 439 (internal quotation marks and
citation omitted). To prevail on an equal protection claim, a plaintiff must “show that
a class that is similarly situated has been treated disparately.” Boardman v. Inslee,

978 F.3d 1092, 1117 (9th Cir. 2020) (internal quotation marks and citation omitted).
“The general rule is that legislation is presumed to be valid and will be sustained if
the classification drawn by the statute is rationally related to a legitimate state
interest,” but heightened standards of review apply when suspect classifications like
race, alienage, or national origin, are implicated or “when state laws impinge on
personal rights protected by the Constitution.” City of Cleburne, 473 U.S. at 440.
As with substantive due process, courts have routinely rejected the argument

that vaccine mandates will trigger heightened scrutiny under the Equal Protection
Clause and have instead applied rational basis review. See, e.g., Kheriaty, 2021 WL
4714664, at *7 (rejecting heightened scrutiny based on classification of “individuals
who have vaccine-induced immunity and individuals who have infection-induced
immunity,”); Norris, 2021 WL 4738827, at *1-3 (finding no suspect classification or
fundamental right implicated by a generally applicable vaccine mandate). The Court

is fully in agreement with this growing consensus and finds that no fundamental
right or suspect classification is implicated by the Oregon vaccine mandates and so
rational basis review will apply to Plaintiffs’ claims.
The rational basis review test is functionally the same under substantive due
process and the Equal Protection Clause. Gamble v. City of Escondido, 104 F.3d 300,
307 (9th Cir. 1997). Under the Equal Protection Clause, if there is no suspect class
at issue, a policy “need only rationally further a legitimate state purpose to be valid.”
Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 291 (1984) (internal
quotations omitted). The Equal Protection clause will be satisfied is there is a

“plausible policy reason for the classification,” the government decisionmaker relied
on facts, that “may have been considered to be true,” and “the relationship of the
classification to its goal is not so attenuated as to render the distinction arbitrary or
irrational.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992). “Given the standard of review,
it should come as no surprise that the [courts] hardly ever strike down a policy as
illegitimate under rational basis scrutiny.” Trump v. Hawaii, ___U.S.___, 138 S. Ct.
2392, 2420 (2018).

As with Plaintiffs’ substantive due process claim, the Court has no trouble
discerning a legitimate state interest in slowing the spread of COVID-19 and the
Court concludes that the vaccine mandates are rationally related to furthering that
interest. The Court concludes that the vaccine mandates would survive rational basis
review and that Plaintiffs have not shown a likelihood of success on the merits of
their equal protection claim or even serious questions going to the merits of that

claim.
II. Irreparable Harm
A plaintiff seeking an injunction must “must establish that irreparable harm
is likely, not just possible.” Alliance for the Wild Rockies, 632 F.3d at 1131. In this
case, Plaintiffs allege that they will suffer irreparable harm in the form of violation
of their constitutional rights and loss of employment for refusing vaccination. As
discussed in the preceding section, the Court has concluded that Plaintiffs have not
established even serious questions going to the merits of their claims for violation of
constitutional rights and so it is not necessary for the Court to examine whether

violation of those rights would establish irreparable harm.
On the issue of loss of employment, the Court notes that most of the Plaintiffs
have either already received an exception to the vaccine mandates or have submitted
a request for an exception and those requests remain pending. Those Plaintiffs have
failed to demonstrate a likelihood of irreparable harm, either because they will not
be terminated under the mandates or because the prospect of termination is entirely
speculative.

Two Plaintiffs have declined to apply for exceptions and a third has had his
request for an exception denied and those Plaintiffs maintain that they face the
prospect of losing their jobs. In Johnson, Judge Simon expressed skepticism that
such a harm would be “irreparable,” outside of exceptional circumstances because it
can be remedied with monetary damages. Johnson, 2021 WL 4846060, at *25; see
also Valdez, 2021 WL 4145746, at *12 (finding no irreparable harm because “being so

terminated/prevented from working as a nurse does not equate to an irreparable
harm.”). The Court is inclined to agree and concludes that Plaintiffs have not
demonstrated irreparable harm, but it is not ultimately necessary to resolve this
issue because even if the Court were to assume that Williams, Lewis, and Hicks
suffered an irreparable harm, they have failed to carry their burden on the other
elements of their request for an injunction.
III. Balance of Equities and the Public Interest
Under the “balance of equities” analysis, a court must “balance the competing
claims of injury” and “consider the effect on each party of the granting or withholding

of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks and citation
omitted). The public interest inquiry, by contrast, “primarily addresses impact on
non-parties rather than parties.” League of Wilderness Defs./Blue Mountains
Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). When the
government is a party, these last two factors of the preliminary injunction analysis
will merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
In this case, the Court concludes that the balance of the equities and the public

interest weigh overwhelmingly against the requested injunction. As discussed above,
Oregon has a legitimate and compelling interest in slowing the spread of COVID-19
and in protecting the lives and health of the people of Oregon. The challenged vaccine
mandates are directly aligned with that interest. The record shows that the recent
surge in COVID-19 cases has strained Oregon’s medical infrastructure and resources
to the breaking point. The most effective tool available for stemming the tide of

COVID-19 is vaccination. And while Oregon’s high rate of voluntary vaccination has
undoubtably helped in sparing the state from the full force of the pandemic witnessed
elsewhere in the country, it has not been enough stave off a massive surge in Delta
variant cases. As set forth in the Sutton Declaration, the overwhelming majority of
COVID-19 hospitalizations and deaths have been among the unvaccinated and there
is a correlation between vaccination rates and infection rates across Oregon counties.
Expanding the number of vaccinated people will lead to an overall reduction in new
COVID-19 cases and that reduction will, in turn, free up medical resources for other
patients and for procedures that have been deferred during the present crisis.

The benefits inherent in requiring all healthcare personnel, school staff, and
state executive employees to be vaccinated are clear and obvious, both in terms of
protecting the newly vaccinated workers themselves and, of at least equal
importance, in protecting the people around them. Certain groups are unable to be
vaccinated and others, most notably young children, are not yet eligible for
vaccination. As Dr. Sutton explains in her Declaration, vaccinated people are much
less likely to become infected or to transmit the virus and so the best protection

available for Oregon’s vulnerable populations is for the people around them to be
vaccinated. Dr. Sutton further explained that the best available science suggests
that the durability and efficacy of infection-based immunity varies widely between
individuals, in contrast with the protection conferred by the vaccine. The state
authorities made the reasonable decision not to exclude people who previously
contracted COVID-19 from the requirements of the vaccine mandates and confined

the available exceptions to those with medical, disability, or sincere religious reasons
for declining the vaccine.
Whatever hardships Plaintiffs face in choosing between accepting vaccination
or leaving their employment are substantially outweighed by the interests and needs
of the State of Oregon and her people. The Court concludes that Plaintiffs have failed
to demonstrate that either the balance of equities or the public interest weighs in
favor of the requested injunction.
In sum, the Court concludes that Plaintiffs have failed to carry their burden

on any of the Winter factors. The Court therefore DENIES the requested injunction.
IV. Injunction Pending Appeal
As the Court has denied Plaintiffs’ motion for a TRO, the Court turns to
Plaintiffs’ request for an injunction pending appeal. “The standard for evaluating an
injunction pending appeal is similar to that employed by district courts in deciding
whether to grant a preliminary injunction.” Feldman v. Arizona Sec. of State’s Office,
843 F.3d 366, 367 (9th Cir. 2016) (en banc).

The Court concludes that an injunction pending appeal is not warranted for
the same reasons it denied Plaintiffs’ request for a TRO. As discussed in the
preceding sections, Plaintiffs have not demonstrated even serious questions going to
the merits of their claims and balance of equities tips and sharply against the
requested relief. Plaintiffs’ motion in the alternative for an injunction pending appeal
is therefore DENIED.

CONCLUSION
For the reasons set forth above, Plaintiffs’ Emergency Motion for a Temporary
Restraining Order, ECF No. 11, is DENIED.
It is so ORDERED and DATED this 1 9th day of October 2021.

/s/Ann Aiken
ANN AIKEN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394019. Public record. Not legal advice.