Understanding Court Decisions

Pandemic restrictions and mandates have brought court cases across the country; our attorneys have synthesized this information and posted relevant source information or official court decisions where possible.

RECENT COURT DECISIONS

Attorneys from Our Constitutional Law Practice Group Have Provided their Analysis

The maps linked below are provided as a resource in understanding which courts are referenced in our analyses.

January, 18TH 2022
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Roberts et al v. Austin et al  

Analysis: A Colorado District Court dismissed a lawsuit filed by two US service members, “documented survivors of Covid-19”, who sought to enjoin the Department of Defense regulations requiring COVID-19 vaccinations.  The complaint, which included citations to the Cleveland Clinic Study and the opinion of Dr. Peter McCullough, focused on natural immunity. The Court held that the case was not ripe for review, as the plaintiffs were still awaiting a determination on their request for exemptions. The Court reasoned: “Plaintiffs’ contention that they may be subject to discipline for refusing to take a vaccine appears to be based on nothing more than speculation. Because Plaintiffs have not established that their claims are justiciable, a fortiori, they cannot establish a likelihood of success on the merits or a clear and unequivocal right to injunctive relief.”

 

> View Case Ruling

January, 18TH 2022
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SMITH et al v Wyoming Governor et al  

Analysis: A Wisconsin District Court dismissed claims that were filed against the Albany County School District by a group of plaintiffs, including Grace Smith, a former high school student who was arrested on a charge of trespass for refusing to wear a face mask inside the high school. The lawsuit was filed against the state and several school districts asked the court to find the mask mandates in place in several school districts unconstitutional.  The Court reasoned:

“Plaintiffs repeat many legal arguments verbatim several times. For instance, Plaintiffs repeat the same argument regarding the meaning of ‘emergency’ in state statutes at least nine times. They then state fourteen claims for relief, with little or no attempt to tie any factual allegations to elements of legal claims.”

The decision leaves Wyoming Governor Mark Gordon and county health officers in five counties as defendants in the lawsuit.

 

> View Case Ruling

January, 13TH 2022
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National Federation of Independent Business et al  v. OSHA et al  

Analysis: The United States Supreme Court blocked the Occupational Safety and Health Administration (OSHA)’s vaccine-or-test mandate by a 6-3 vote. While the case will return to the Circuit Courts for further proceedings, it is very unlikely that the courts will reach a conclusion different than the Supreme Court’s on the stay applications.

Shortly after the Court released its decision, the White House issued a statement saying, in part:

“As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one-third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.”

The Supreme Court blocked the mandate on chiefly procedural grounds. Invoking the major-questions doctrine, the court stated that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And it held that OSHA’s vaccine-or-test mandate was a major question because it is “a significant encroachment into the lives—and the health—of a vast number of employees.” The Court further emphasized that this kind of OSHA mandate was unprecedented: “It is telling that OSHA, in its half-century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a telling indication that the mandate extends beyond the agency’s legitimate reach.”

The court then considered whether the Occupational Safety and Health Act “plainly authorizes” OSHA’s vaccine-or-test mandate and held that it does not. The court viewed the Act as limited to “workplace safety standards, not broad public health measures.” To the court, although COVID-19 is a risk in many workplaces, it is not an “occupational hazard in most.” Allowing OSHA to regulate that “universal” risk of COVID, the court believed, “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The court did emphasize, however, that a more-limited vaccine-or-test mandate might pass muster. It stated that where COVID-19 “poses a special danger because of the particular features of an employee’s job or workplace, target regulations are plainly permissible.” OSHA, for instance, can “regulate risks associated with working in particularly crowded or cramped environments.” What OSHA cannot regulate, the court held is “the everyday risk of contracting COVID-19 that all face.” The court, therefore, reimposed a nationwide stay blocking the OSHA vaccine-or-test mandate.

 

> View Case Ruling

January, 13TH 2022
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Biden et al v. Missouri et al

Analysis: The United States Supreme Court allowed the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care workers to go into effect. Just like the Court’s prior determination with regard to the OSHA mandate, the case will return to the Circuit Courts for further proceedings, it is very unlikely that the courts will reach a conclusion different than the one reached by the Supreme Court.  The court’s decisions mean that health care workers at facilities and at suppliers covered by the CMS regulation must be fully vaccinated or receive an approved medical or religious exemption by February 28, 2022.

In its opinion allowing the CMS vaccine mandate to go into effect, the court noted that CMS has broad powers to condition facilities’ participation in the Medicare and Medicaid programs on “requirements as [CMS] finds necessary in the interest of the health and safety of individuals who have furnished services in the institution.” The court held that CMS reasonably concluded that a COVID-19 vaccine mandate was necessary to protect patient health and safety because “COVID-19 is a highly contagious, dangerous — and especially for Medicare and Medicaid patients — deadly disease.”

The court rejected the challengers’ arguments that the statute “authorizes [CMS] to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.” The court cited with approval CMS’ “longstanding practice” of using its statutory authority to regulate “the safe and effective provision of healthcare, not simply sound accounting.” For example, CMS regulations govern how long after admission a patient must be examined, and by whom; the procurement and transplant of solid organs; tasks that can be delegated by a physician to an advanced-practice provider; and the control of infectious diseases within a facility. Not only that, but CMS routinely regulates the qualifications and duties of health care professionals, justifying these regulations by its power to protect patient safety. Requiring a COVID-19 vaccine for health care workers, the court held, is ultimately no different.

The court recognized that the CMS vaccine mandate “goes further than what [CMS] has done in the past to implement infection control” but also that CMS “has never had to address an infection problem of this scale and scope before.” And the court noted that vaccine requirements are common in the health care setting and that “healthcare workers and public-health organizations overwhelmingly support” the CMS mandate, which “suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety regulations that Congress has authorized [CMS] to impose.”

Finally, the court rejected the challengers’ claims that the CMS mandate was unlawfully issued without public participation and did not adequately consider alternatives or the available evidence. As for public participation, the court held that the impending winter flu season was sufficient good cause to dispense with advance notice and comment. And as for alternatives and evidence, the court held that CMS’ decisions were “within a zone of reasonableness” and should not be second-guessed by the courts. The court, therefore, stayed the preliminary injunctions imposed by the Missouri and Louisiana district courts blocking the CMS mandate.

 

> View Case Ruling

January, 11TH 2022
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Burcham, et al v. The city of Los Angeles, et al

Analysis: A California District Court dismissed a lawsuit filed by Los Angeles Police Department (“LAPD”) employees who protested against the city’s COVID-19 vaccine mandate, testing, and reporting requirements.  The Court was not persuaded by allegations of Constitutional and Emergency Use Authorization (“EUA”) violations.

In part, the LAPD employees challenged the mandate on the basis that it violates their right to privacy and that their right to refuse vaccination is a fundamental right that is being abridged by the mandate. Both claims were dismissed.  Unlike the US Constitution, the California Constitution contains an express right to privacy. Nonetheless, the Court held that the mandate is rationally related to the state’s interest in preventing the spread of COVID-19, reasoning that the right to privacy is “no more sacred than any other fundamental rights that have readily been given way to a State’s interest in protecting the health and safety of its citizens” and that “compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases.” The Court also emphasized that the Supreme Court of the United States has long rejected a fundamental right to refuse vaccination.

The LAPD employees also alleged that the mandate violates their due process rights because the EUA requires “mandated informed consent”. The Court reasoned that no EUA violation occurred, because the relevant provisions of the EUA statute only apply to medical providers and the Pfizer vaccine now has full FDA approval.

 

> View Case Ruling

January, 10TH 2022
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Jason Hayes, et al vs. University of Shreveport, LLC, et al

Analysis: The Louisiana Supreme Court, the state’s highest court, held that a private employer-imposed vaccine mandate did not violate the state’s constitution and statutory law. Louisiana, like New York, is an at-will employment state.  The Court held that the state’s provision regarding medical informed consent did not apply because the Plaintiff’s employer was not their healthcare provider. Further, the Court held that the state’s anti-discrimination provision of the constitution did not apply, because the employer was not a state actor. The Court concluded with:

“A corollary of the employment-at-will doctrine is that courts are not quasi-human resources departments that re-evaluate personnel decisions or the wisdom of those determinations, so long as there is no violation of “federal and state laws which proscribe certain reasons for dismissal of an at-will employee.” […]“The role of the courts is not to judge whether an employer’s personnel decisions are fair or good business decisions.”[…]. “Broad policy considerations creating exceptions to employment at will and affecting relations between employer and employee should not be considered by this court.”

 

> View Case Ruling

January, 10TH 2022
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Public Health and Medical Professionals for Transparency v. Food and Drug Administration

Analysis: 

Analysis: A Texas District Court ordered the following schedule for the Food and Drug Administration (FDA) to disclose documents pertaining to the Plaintiff’s Freedom and Information (FOIA) request, which seeks to obtain and disseminate the data relied upon by the FDA to license COVID-19 vaccines:

  1. “The FDA shall produce the “more than 12,000 pages” articulated in its own proposal […] on or before January 31, 2022.
  2. The FDA shall produce the remaining documents at a rate of 55,000 pages every 30 days, with the first production being due on or before March 1, 2022, until production is complete. […]”

 

> View Case Ruling

January, 4TH 2022
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LT et al v. Basset  1:21-CV-1034 (LEK/DJS)

Analysis: A New York District Court denied a preliminary injunction to stop New York State’s facemask mandate for children in schools. The Plaintiffs argued that the face mask mandate prevented their children from fully showing their facial expressions and expressing vocal modulations, therefore burdening their exercise of free speech guaranteed by the First Amendment. The Court held that the mandate does not implicate the First Amendment, reasoning as follows:

“The mandate was not drawn by conduct with a significant expressive element. The conduct Plaintiffs contend is expressive and protected––the facial expressions and vocal tone of students and teachers––is not the conduct that drew the state action. In other words, this is not a content-neutral law created because students were speaking above a certain volume or making facial expressions. The mandate was implemented to combat the spread of COVID-19 and is drawn by and directed toward the conduct of wearing, or not wearing, a mask; conduct that has been frequently held to not be sufficiently expressive to warrant First Amendment protection. [. . .] Thus, no conduct with a significant expressive element drew the government action, and Plaintiffs do not allege such.

Neither does the Mask Mandate have the inevitable effect of singling out those engaged in expressive activity. The Mask Mandate applies generally to all who enter healthcare facilities, adult care facilities, P-12 school settings, homeless shelters, correctional facilities, and detention centers, on public transport, and in most public settings, regardless of whether they seek to engage in expressive activity […]

The burden placed on Plaintiffs by the Mask Mandate is certainly not trivial. It is cumbersome, especially for children, to wear a mask for hours on end. Muffled communication is frustrating, and as Plaintiffs’ experts opine, may affect educational quality. However, given the evidence presented by Defendants that COVID-19 infection rates are increasing, and masks reduce the spread of COVID-19, enjoining the mask mandate may imperil thousands of lives and cause schools to shut down, which would, in turn, cause severe disruptions in Plaintiffs’ learning. […] While educational quality is undoubtedly an important concern, it is heavily outweighed by the potential loss of life and the learning disruptions that could occur if the mandate were enjoined. Thus, the public interest favors leaving the Mask Mandate in place”

 

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January, 3RD 2022
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State of Louisiana, et al, v. Xavier Becerra, et al

Analysis: A Louisiana District Court granted a preliminary injunction to temporarily stop the Head Start mandate, which requires all Head Start employees and contractors whose activities involve contact or providing service to children or families to be vaccinated from COVID-19 and further requires masking for activities at Head Start programs. The Head Start and Early Head Start programs are administered by the Office of Head Start (OHS), within the Administration for Children and Families, U.S. Department of Health and Human Services. OHS administers grant funding and oversight to 1,600 public and private nonprofit and for-profit agencies that provide Head Start services in local communities.

By way of this court’s Order, the mandate is now stayed in 24 states, which do not include New York. The court held, in relevant part: “The issue in this case is not whether individuals should take the COVID-19 vaccine, but whether federal agencies can mandate individuals to take a vaccine or be fired. In this Court’s opinion, the Executive branch has declared it has the authority to make laws through Federal agencies. A crossroad has clearly been reached in this country. If the Executive branch is allowed to usurp the power of the Legislative branch to make laws, then this country is no longer a democracy—it is a monarchy.”

 

January, 3RD 2022
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Kerri W.S. v. Zucker, et al

Analysis: The Fourth Department of the New York State Supreme Court determined that the regulation mandating certain vaccines in schools, 10 N.Y.C.R.R. § 66-1.1(1), does not violate the separation of powers doctrine or exceed the regulatory powers of the NYS Department of Health. The Court stated, in relevant part:

“The legislature has determined that vaccines save lives. It has therefore established a mandatory ‘program of immunization . . . to raise to the highest reasonable level the immunity of the children of the state against communicable diseases’ (Public Health Law § 613 [1] [a]). And by promulgating 10 NYCRR 66-1.1 (l), respondents-defendants-appellants (defendants) merely implemented the legislature’s policy in a manner entirely consistent with the legislative design.

While, as of the date of this correspondence, there is no legislation nor emergency regulations mandating  COVID-19 vaccination to attend school, this decision nevertheless strengthens the regulation responsible for student vaccination.

 

December, 31st 2021
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Oklahoma State of et al v. Biden et al

Analysis: An Oklahoma District Court denied a preliminary injunction to stay the enforcement of the vaccine mandate for members of Oklahoma National Guard.  The Court held the Biden administration did not violate the Administrative Procedure Act (“APA”), because the President is not an agency within the meaning of the APA.  The Court also held that the mandate does not violate the US Constitutional, reasoning that a vaccine mandate is neither a search nor a seizure for Fourth Amendment purposes. The Court also stated:

“The vaccine mandate to which the Governor objects is the one–in addition to the nine that already apply to all service members–intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought. The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same. The claims asserted by the Governor and his co-plaintiffs are without merit. The motion for preliminary injunction will be denied.”

 

December, 31st 2021
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State of Missouri, et al, Plaintiffs, v Joseph R Biden, Jr, et all, Defendant

Analysis: A Missouri District Court sustained a preliminary injunction that prohibits the enforcement of COVID-19 vaccination mandates for employees of federal contractors. The ruling was granted in favor of a group of plaintiff states—Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

This court’s analysis falls in line with that of several other federal courts, ruling that several of the plaintiffs had adequate standing to challenge the vaccine mandate and that the mandate likely exceeds the presidential authority granted under the Federal Property and Administrative Services Act (FPASA).  The court also determined that the mandate “likely does not violate the Spending Clause, one of Congress’s enumerated powers . . . [and] that plaintiffs are not likely to succeed on their claim of Tenth Amendment violation.” However, this did not prevent the court from entering a preliminary injunction. The court assessed costs associated with mandate compliance and “conclude[d] that plaintiffs w[ould] suffer irreparable harm in their capacity as federal contractors.” After weighing such harms against the public’s interest, the court ruled for the plaintiffs and found such factors to “weigh in favor of a preliminary injunction.” The scope of the injunction was limited to “plaintiff-States [that we]re properly before the Court.”

 

December, 31st 2021
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State of Georgia, et al, Plaintiffs, v Joseph Biden, et al, Defendants

Analysis: The Eleventh Circuit denied the federal government’s motion to stay the preliminary injunction granted by a Georgia District Court, which effectively stayed President Biden’s COVID-19 vaccination mandate for employees of federal contractors nationwide. The Eleventh Circuit  determined  that the government failed to “establish[] one of ‘the most critical’ factors—that it will be irreparably injured absent a stay.” The Eleventh Circuit has yet to rule on the government’s appeal. 

 

December, 17th 2021
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Case NO. 21-7000, MCP NO. 165, OSHA COVID RULE

Analysis: The Sixth Circuit Court of Appeals, in a 2-1 decision, dissolved the stay previously placed on OSHA’s Emergency Temporary Standard (“ETS”) by the Fifth Circuit.  The ETS mandates employers with 100 or more employees require all employees to be fully vaccinated against COVID-19 or be required to wear face coverings and undergo weekly testing.

The Sixth Circuit did not address how its decision would impact the timing of the ETS’s vaccination and testing and requirements, which were originally set to go into effect December 6, 2021, and January 4, 2022, respectively.  The day after the Sixth Circuit’s decision, December 18, 2021, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Therefore, while the ETS is now in effect, OSHA will not enforce its requirements until the dates noted above.

> Download

 

December, 16th 2021
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State of Texas, et al, v. Xavier Becerra, et al

Analysis: The Biden administration asked the Supreme Court to block lower court orders that are keeping CMS vaccine mandate from going into effect.

 

December, 15th 2021
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State of Texas, et al, v. Xavier Becerra, et al

Analysis: A Louisiana District Court granted a preliminary injunction to enjoin the Biden administration from enforcing the vaccine mandate for federal contractors in Louisiana, Indiana and Mississippi.  The court reasoned that the mandate conflicts with the 10th amendment of the Constitution and the Administrative Procedure Act.

 

December, 15th 2021
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State of Texas, et al, v. Xavier Becerra, et al

Analysis: A Texas District Court granted a preliminary injunction to enjoin the Biden administration from enforcing the CMS vaccine mandate for Medicaid and Medicare-certified health care providers. The court reasoned that the mandate conflicts with the Administrative Procedure Act. Moreover, the Court reasoned that the mandate is arbitrary and capricious:

 

“Plaintiffs are likely to prove the CMS Mandate is overbroad in at least three respects. First, the HHS Secretary extrapolated data from one provider and applied it to other fundamentally different settings. Second, the CMS Mandate fails to consider the disruptions to staff shortages and healthcare resources especially in rural areas from its enforcement. Third, the CMS Mandate lacks exemptions for those who: (1) have a natural immunity to COVID-19; (2) would prefer a testing option as an alternative; or (3) have little or no patient contact.”

 

December, 15th 2021
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MASSACHUSETTS BUILDING TRADES COUNCIL et al. v. UNITED STATES DEPARTMENT OF LABOR et al

Analysis: Due to a split decision, the Sixth Circuit denied the petitioners’ request for an en banc hearing on the Biden administration’s OSHA mandate. The majority wrote:

“This case shows the folly of initial hearing en banc. The massive docket and profusion of briefs, as in an especially complex matter before a district court, require focused consideration by a devoted panel. En banc hearing does indeed put “all hands on deck.”… “In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What’s more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.”

 

December, 14th 2021
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State of Louisiana, et al, v. Xavier Becerra, et al

Analysis: The 5th U.S. Circuit Court of Appeals in New Orleans ruled that a lower court only had the authority to block the CMS mandate in the 14 states that had sued. The appeals court ruled that the lower court was wrong to impose a nationwide injunction. The mandate remains temporarily blocked in 24 states — the 14 states involved in the case reviewed by the Louisiana appeals court and 10 states where the mandate was blocked by a separate November 29 ruling (Missouri).  On December 2, 2021, CMS suspended the enforcement of the vaccine mandate, pending the resolution of Court Ordered injunction. To date, it seems that the suspension is still in effect.  

 

December, 14th 2021
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Anthony Marciano, Plaintiff v Bill DeBlasio, et al, Defendants

Analysis: A New York State Supreme Court granted a temporary restraining order (TRO) to a group of City workers who sought to enjoin the City’s vaccine requirement. The Court did not issue a written order and has yet to elaborate whether the TRO is only applicable to the named Plaintiffs, or everyone “similarly situated”.

 

December, 14th 2021
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Michael Kane, et al, Plaintiffs, v. Bill De Blasio, et al, Defendants

Analysis: Southern District of New York Court denied an application for preliminary injunction to a group of NYC employees who sought to enjoin the City from enforcing a vaccine mandate on the basis of sincere religious belief.

 

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December, 13th 2021
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Dr. A, et al, Applicants v. Kathy Hochul, et al. Defendants

Analysis: The Supreme Court denied an application for injunctive relief from the health care worker mandate codified under 10 NYCRR 2.61. Justice Thomas would’ve granted the application. Justice Gorsuch and Alito dissented from the denial of the application. The 14-page dissent seems to focus on the lack of religious exemption.

 

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December, 8th 2021
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Jacob Doyle Corman, et al, Plaintiffs v. Pennsylvania Department of Health, Defendant

Analysis: Pennsylvania Supreme Court Middle District affirmed the lower court’s decision which held that the school face-mask mandate imposed by Governor Wolf’s acting health secretary was without legal authority.  To date, there is still no written opinion.

 

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December, 8th 2021
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Brian Shellem, et al, Plaintiffs v Angela Grunwald, et al, Defendants

Analysis: An Oklahoma County judge issued a temporary injunction barring a local school district from implementing or enforcing its COVID-19 policy on unvaccinated students. Pursuant to the policy at issue, unvaccinated students had to quarantine if exposed to someone who was positive for COVID, while the vaccinated students could stay in school. The Court held that the plaintiffs established that the policy likely violates the Equal Protection Clause of the 14th amendment.

 

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December, 8th 2021
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Anthony Marciano, Plaintiff v Bill DeBlasio, et al, Defendants 

Analysis: A New York County Court granted a hearing to consider a restraining order on New York City’s vaccine mandate that applies to all municipal workers, including police officers and firefighters. The hearing will determine if a temporary restraining order on the mandate is warranted and gives the city until next Monday to respond, with the hearing scheduled for the following day. The hearing will not impact the new mandate for New York City private-sector employees.

 

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December, 7th 2021
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Laura Kelly, et al, Plaintiffs, v. Stony Brook University Hospital

Analysis: A New York State Supreme Court refused to grant a temporary restraining order (TRO) enjoining the State from enforcing the healthcare worker vaccine mandate and scheduled a hearing for December 22, 2021.

 

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December, 7th 2021
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State of Georgia, et al, Plaintiffs, v Joseph Biden, et al, Defendants

Analysis: A Georgia District  Court issued a preliminary injunction enjoining the Biden administration from enforcing the Federal Contractor vaccine mandate, codified at EO 14042, in all covered contracts in any state or territory in the United States. The Court held, in part, that Plaintiffs are likely to succeed on the merits of their argument that Biden’s administration’s action was not authorized by the Procurement Act.

Pursuant to this ruling, at this time, federal contractors are not under a federal-mandated obligation to enforce a vaccine mandate. This ruling may directly impact you if you are employed by a federal contractor that is enforcing a mask mandate pursuant to EO 14042. This ruling does not prevent a federal contractor, as a private employer, from promulgating a vaccine mandate on its own accord.

 

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December, 6th 2021
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Case No. 21-7000, MCP No.165, OSHA Covid Rule

Analysis: The 6th Circuit denied the motion to transfer the OSHA mandate matter to the 5th circuit. The Appellees have until December 7th to file their responses to the Government’s motion to dissolve the stay.

The 6th Circuit also denied the Government’s motion to expedite briefing, and the motion of a group of labor unions to transfer the case to the DC Circuit.

 

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November, 30th 2021
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Michael Kane, et al, Plaintiffs, v Bill De Blasio, et al, Defendant

Analysis: The Second Circuit overturned the District Court’s Order denying injunctive relief against the NYC teacher vaccine mandate; the mandate, in this case, was challenged on religious grounds. The Court, ruling Sunday night held that: “The Vaccine Mandate does not violate the First Amendment on its face, and we thus agree with the district court to this extent. [However, for] the present, Plaintiffs have established their entitlement to preliminary relief on the narrow ground that the procedures [] employed to assess their religious accommodation claims were likely constitutionally infirm as applied to them.” The Court also found that:

The City has also consented to the relief ordered by the Motions Panel, under which the Arbitration Award [] and its results will be set aside and Plaintiffs will receive de novo consideration of their accommodation requests. We confirm the City’s “susp[icion]” that the Arbitration Award procedures likely violated the First Amendment as applied to these Plaintiffs. We emphasize, however, that this determination is exceedingly narrow – simply that Plaintiffs, at this juncture, have sufficiently established a likelihood of success so as to meet this prong of the preliminary injunction standard.

What the Court effectively did is say, the standards adopted by the Arbitrator likely violated the 1A, so the DOE is going to consider anew all of the requests for religious accommodations; it does not mean that they have to grant them, as the mandate itself does not violate the 1A; just the way the requests were considered. The Court also refused to extend the Interim Relief to “all other individuals similarly situated.”

 

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November, 29th 2021
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State of Missouri, et al, Plaintiffs, v Joseph R Biden, Jr, et all, Defendant

Analysis: Missouri federal court issued an order partially blocking the Biden’s CMS mandate, which covers certain health care staff at providers that participate in Medicare and Medicaid and set a December 6 deadline for those workers to have received the first dose of the Covid-19 vaccine.

It will be blocked in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The Court reasoned that the CMS mandate: (i) lacks evidence showing that

vaccination status has a direct impact on spreading COVID in the mandate’s covered healthcare facilities; (ii) failed to consider or rejected obvious alternatives to a vaccine mandate without evidence; (iii) the mandate was too broad in scope; failed to consider other interests.

 

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November, 29th 2021
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Marciano Plata, et al, Plaintiff, v Gavin Newsom, Defendant

Analysis: The Ninth Circuit granted a stay, pending appeal, of the District Court’s Order, which had mandated the implementation of a COVID-19 vaccination mandate in California prisons for all employees and visitors. This is a pretty unique case; California’s prison system is under the management of a receiver, who, upon complaint from a group of prisoners recommended the implementation of the mandate. An order to showcase, as to why the recommendation should not be adopted, was then filed; after an argument, the Court ordered that the COVID-19 vaccination mandate be adopted. California already had a vaccine mandate for State employees, but curiously Gov. Newsom et al. actually opposed and appealed from the District Court’s Order. Court’s stay order is only two pages long, so no analysis.

 

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November, 29th 2021
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John Doe, v San Diego Unified School District

Analysis: The Ninth Circuit granted an injunction pending appeal of the San Diego Unified School District’s vaccination mandate for students, but on fairly narrow grounds: “only while a ‘per se’ deferral of vaccination is available to pregnant students under San Diego Unified School District’s COVID-19 vaccination mandate.” If this deferral is lifted, so will the injunction.

 

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November, 29th 2021
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Massapequa Union Free School District, Plaintiff, v Kathy Hochul, Defendant

Analysis: In an Article 78 proceeding filed in Albany County, the Court dismissed the Petition challenging the school mask mandate; Court found that the DOH had the authority to issue it and that it was neither arbitrary nor capricious.

 

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November, 24th 2021
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BST Holding, et al, Plaintiffs, v OSHA

Analysis: The Fifth Circuit Petitioners who initially received the stay filed a Motion to Transfer; they are seeking to have the case transferred back to the Fifth Circuit, claiming that the Fifth Circuit is more convenient for the majority of the parties, attorneys, etc., and that most others do not object.

Also, the Sixth Circuit’s Scheduling Order on the Motion to Stay; any further motions are to be filed November 30, 2021; opposition papers to any such motions are to be filed December 7, 2021; and any replies to any such motions are to be filed by December 10, 2021. 

 

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November, 24th 2021
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Theodore Federoff, et al, Plaintiffs, v Geisinger Clinic, et al, Defendants

Analysis: Federal Judge in the Middle District of Pennsylvania denied a Motion for Injunctive Relief filed by approximately 100 healthcare workers employed by a private entity. In this case, the employees had the option to either get vaccinated or undergo weekly testing. These employees had all gotten religious exemptions, and now did not want to undergo testing. The Court held (scathingly):

Federal courts have tremendous power, but limited jurisdiction. Federal judges are not entitled to intervene any time that parties believe they have been treated unfairly. We wear robes, not crowns. []

To remedy their unfair treatment [], the Employees ask that I commandeer their employer’s vaccination policy — and issue a preliminary injunction that either exempts them from their employer’s unvaccinated employee testing requirement or requires that the vaccinated employees be tested as well. Yet in this effort, they have neglected to show that they have a right that would justify this extraordinary action. While [the Employees] invoke religious discrimination, their focus is on the “science.” Now, I’ll admit, some of what they cite seems to have merit. Though I [would] [] be remiss if I didn’t note that the vast majority of their case appears to reflect a toxic combination of motivated reasoning and misinformation, a cocktail that promises to plague this country long after COVID-19 has abated. []

 

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November, 24th 2021
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David Sambrano, et al, Plaintiffs, v United Airlines, Inc, Defendant

Analysis: Federal Judge in Northern District of Texas denied Motion for Reconsideration filed by United Airlines employees, following the Court’s earlier ruling which had denied the employees’ Motion for a TRO/Preliminary Injunction. The Court also denied the employees’ motion for an injunction pending appeal.

 

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November, 19th 2021
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Plaintiffs, v Mass General Bringham, Inc

Analysis: [] The City has also consented to the relief ordered by the Motions Panel, under which the Arbitration Award [] and its results will be set aside and Plaintiffs will receive de novo consideration of their accommodation requests. We confirm the City’s “susp[icion]” that the Arbitration Award procedures likely violated the First Amendment as applied to these Plaintiffs. We emphasize, however, that this determination is exceedingly narrow – simply that Plaintiffs, at this juncture, have sufficiently established a likelihood of success so as to meet this prong of the preliminary injunction standard.[]

What the Court effectively did is say, the standards adopted by the Arbitrator likely violated the 1A, so the DOE is going to consider anew all of the requests for religious accommodations; it does not mean that they have to grant them, as the mandate itself does not violate the 1A; just the way the requests were considered.

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November, 12th 2021
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Pennsylvania Commonwealth Court Stay

Analysis: An Opinion (4-1) was issued by the Commonwealth Court, which generally acts as an intermediate appellate court (similar to our Appellate Division), but which acts as the trial court in cases involving the Commonwealth of Pennsylvania (or as in this case, the Acting Secretary of Health).

Note that this Opinion has already been stayed; the Commonwealth has appealed this Opinion to the Pennsylvania Supreme Court, triggering an automatic stay while the appeal is pending.

November, 12th 2021
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Dan Altschuld, et al, Plaintiffs, v Gina Raimondo, et al, Defendants

Analysis: Federal Judge in DC denied Motion for Preliminary Injunction filed by a group of federal employees working for the Departments of Agriculture, Defense, Commerce, Energy, Health and Human Services, Homeland Security, Justice and State, as well as the Environmental Protection Agency, U.S. Agency for International Development, CIA and Office of the Director of National Intelligence. Judge Chutkan held:

While the executive orders contemplate the eventual termination of unvaccinated employees [], Plaintiffs are incorrect, that such termination is either imminent or certain. Plaintiffs themselves concede that “no one Plaintiff has received notice that [they] will be removed from the federal workplace or from a federal contract on November 9, 2021. [] They also admit that no plaintiff has received a definitive date or timeline of any adverse employment action. [] These concessions fatally undermine Plaintiffs’ claim that they are about to suffer certain and great irreparable harm.

The public interest and the balance of equities, however, bear special mention here. The [] government has been battling the COVID-19 virus for almost two years. The pandemic has taken an enormous toll in the loss of human life, jobs, travel, education, and has affected almost every aspect of daily life [to] with especially tragic results for the most vulnerable []. It [] will continue to reverberate on a global scale for many years. The [] vaccines, which were [] developed as a result of decades of peer-reviewed scientific research and work, present a [] long-hoped-for opportunity to bring an end to the pain and suffering created by the pandemic. [] The federal and scientific consensus is that vaccines are the “best way to slow the spread of COVID-19.”

Plaintiffs have failed to show irreparable harm and are not entitled to a preliminary injunction. [] [T]his court is guided by the century-old standard that mandatory vaccinations are a suitable expression of the public interest in health and safety.

 

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November, 11th 2021
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Brnovich v Biden, et al

Analysis: Federal Judge in Arizona denied State of Arizona’s Motion for Preliminary Injunction against President Biden’s vaccine mandate for all federal employees and federal contractors, without prejudice to re-filing an Amended Complaint.

 

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November, 11th 2021
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We the Patriots USA Inc, et al, v Hochul, et al

Analysis: Not a decision, but the We the Patriots NY HCW vaccine case on religious exemptions is now up at SCOTUS; AG James filed their response to the application for an interim stay.

 

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November, 10th 2021
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Steven Church, et al, Plaintiffs, v Joseph Biden, et al, Defendants

Analysis: DC District Court Judge denied a Motion for TRO/Preliminary Injunction filed by a group of federal employees and two marines who, by virtue of their federal employment, were subject to President Biden’s EO on vaccine mandates for federal employees, as well as, Secretary of Defense Lloyd Austin’s August 24, 2021 vaccine mandate for all members of the armed forces, etc.

The Federal Employee Plaintiffs’ request for injunctive relief rests on their argument that mandatory vaccination against COVID-19 “burdens” their right to freely exercise their religion [] by requiring them [] (a) to be vaccinated in contravention of their “sincerely held religious beliefs”; or (b) to be terminated from their jobs. [] But these arguments hinge on “contingent future events that may not occur as anticipated, or indeed may not occur at all.’” [] Because the Court finds that the Federal Employee Plaintiffs have failed to demonstrate a likelihood of success, on the justiciability of their claims, it shall not at this time address the likelihood of success on the substantive theories underlying their request for injunctive relief.

 

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November, 10th 2021
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David Sambrano, et al, Plaintiffs, v United Airlines, Inc, Defendant

Analysis: United Airlines Vaccine Mandate: Federal Judge in ND Texas denied employees’ Motion for Preliminary Injunction.

There are [] divergent views on how United handled this delicate situation. To be sure, the Court is disturbed by United’s seemingly calloused approach to its employees’ deeply personal concerns with injecting a foreign substance into their bodies. This is especially true since United stated on the record that 99% of its employees are vaccinated and that there is virtually no chance to transmit COVID-19 on its planes. [] United has thus instituted a regime in which nothing short of complete compliance with its commands will suffice. Any dissenters will be given the trifling pittance of indefinite unpaid leave. United’s mandate thus reflects an apathy, if not antipathy, for many of its employees’ concerns and a dearth of toleration for those expressing diversity of thought. [] Ultimately, however, it is not for the Court to decide if United’s vaccine mandate is bad policy. Rather, it is the Court’s role to determine if Plaintiffs carried their burden to obtain a preliminary injunction.

 

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November, 9th 2021
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David Sambrano, et al, Plaintiffs, v United Airlines, Inc, Defendant

Analysis:

OSHA Response to Motion to Stay attached. On the “grave danger” piece:

OSHA properly “determine[d]” that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” 29 U.S.C. § 655(c). The COVID-19 virus is both a physically harmful agent and a new hazard. [] It readily fits the definition of an “agent,” which is “a chemically, physically, or biologically active principle.” [] OSHA regulations have previously explained as much. See, e.g., 29 C.F.R. § 1910.1020(c)(13) (defining “toxic substances or harmful physical agents” to include “biological agent[s] (bacteria, virus, fungus, etc.)”); 29 C.F.R. § 1910.1030 (bloodborne-pathogens issued rule pursuant to authority to regulate “toxic materials or harmful physical agents”). The COVID-19 virus also constitutes a “new hazard.” It is “a source of danger,” [] and was unknown in the United States until early 2020. []

OSHA also reasonably concluded that the COVID-19 virus presents a “grave danger,” which encompasses threats “of incurable, permanent, or fatal consequences to workers.” Florida Peach Growers Ass’n v. DOL, 489 F.2d 120, 132 (5th Cir. 1974). COVID-19 has killed hundreds of thousands of people in the United States and caused “serious, long-lasting, and potentially permanent health effects” for many more. Pmbl.- 61424. OSHA described myriad studies showing workplace “clusters” and “outbreaks” and other significant “evidence of workplace transmission” and “exposure.” Pmbl.- 61411-17. With the risk of exposure cutting across workplaces, the country continues to see daily hospitalization and death of unvaccinated workers. []

OSHA also properly “determine[d]” that the Standard “is necessary to protect employees” from this grave danger. 29 U.S.C. § 655(c)(1). The Standard utilizes “the most effective and efficient workplace control available: vaccination,” and it offers, as an alternative, “regular testing, use of face coverings, and removal of infected employees from the workplace.” [] Citing extensive evidence, OSHA recognized that vaccination “reduce[s] the presence and severity of COVID-19 cases in the workplace,” and effectively “ensur[es]” that workers are protected from being infected and infecting others. [] OSHA properly exercised its discretion to offer an alternative whereby employees can be “regularly tested for COVID-19 and wear a face covering.” [] The Standard provides employers with this choice because they are better positioned to determine which approach will “secure employee cooperation and protection.” Id. OSHA thus crafted a regulatory approach that protects unvaccinated workers while leaving leeway for employers to determine the most appropriate option for their workplaces.

Taken together, these risk-mitigation methods will protect unvaccinated workers against the most serious health consequences of a COVID-19 infection and “reduce the overall prevalence” of the COVID-19 virus “at workplaces.” [] Indeed, OSHA estimates that the Standard will “save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months.” [] OSHA also properly concluded that its existing regulatory tools do not “provide for the types of workplace controls that are necessary to combat the grave danger addressed by” the Standard. Pmbl.-61441.

 

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