George et al v. Grossmont Cuyamaca Community College District Board Of Governors et al, No. 3:2022cv00424 - Document 84 (S.D. Cal. 2022)
Court Description: Order Denying Plaintiffs' Motion for a Preliminary Injunction (ECF No. 40 ). Signed by Judge Cynthia Bashant on 11/3/22. (jmo)
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George et al v. Grossmont Cuyamaca Community College District Board Of Governors et al Doc. 84 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUDY GEORGE, et al., Plaintiffs, 12 13 14 15 16 Case No. 22-cv-0424-BAS-DDL ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION v. GROSSMONT CUYAMACA COMMUNITY COLLEGE DISTRICT BOARD OF GOVERNORS, et al., [ECF No. 40] Defendants. 17 18 Plaintiffs bring this action to challenge the requirement imposed by three 19 California Community College Districts (“CCDs”)—San Diego Community College 20 District (“SDCCD”), South Orange County Community College District (“SOCCCD”), 21 and Grossmont Cuyamaca Community College District (“GCCCD”)—that their 22 employees and students be fully vaccinated against the novel coronavirus 2019 23 (“COVID-19”), a highly contagious virus that has killed close to 100,000 Californians 24 and sickened many more. (Compl., ECF No. 1.) On a myriad of constitutional grounds 25 and under Title VII of the Civil Rights Act of 1964, the Complaint contests the legality of 26 the CCDs’ vaccine mandates and the framework for determining accommodations built 27 into those mandates (collectively, the “CCDs’ Vaccine Requirements”). (Id.) 28 -122cv0424 Dockets.Justia.com 1 Approximately three months after commencing this action, and seven months after 2 the final CCD Vaccine Requirement went into effect, Plaintiffs moved ex parte for a 3 temporary restraining order, essentially seeking to freeze the CCDs’ Vaccine 4 Requirements. (Mot., ECF No. 40; see also Mem. in Supp. of TRO App., Ex. 1 to TRO 5 App. (“Mem.”), ECF No. 40-1.) Defendants opposed (Opp’n, ECF No. 68) and Plaintiffs 6 replied (Reply, ECF No. 71). 7 restraining order into a motion for a preliminary injunction (“Motion”) and held oral 8 argument on November 2, 2022. (ECF No. 82.) 9 considered the arguments, the Court DENIES the Motion for a preliminary injunction for 10 the following reasons. 11 // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // The Court converted the request for a temporary Having reviewed the record and -222cv0424 1 I. BACKGROUND 1 2 A. 3 COVID-19 is a highly contagious virus that spreads from person to person mainly 4 through respiratory droplets produced when an infected person—even an asymptomatic 5 one—speaks, coughs, or sneezes. Brach v. Newsom, 6 F.4th 905, 934 (9th Cir. 2021) 6 (Hurwitz, C.J., dissenting), vacated on grant of reh’g en banc, 18 F.4th 1031 (9th Cir. 7 2021). People with COVID-19 have reported a wide range of symptoms, with many 8 suffering hospitalization and/or long-term health complications, including death. Id. 9 Approximately one million Americans—and six million worldwide—have perished from 10 COVID-19 infection and related complications. UnifySCC v. Cody, No. 22-cv-01019- 11 BLF, 2022 WL 2357068, at *1 (N.D. Cal. June 30, 2022). COVID-19 and the Vaccines 12 COVID-19 first reached the United States in winter of 2021; not long after, 13 “infections began popping up across the country.” South Bay United Pentecostal Church 14 v. Newsom, 985 F.3d 1128, 1132 (9th Cir.), rev’d and vacated by South Bay United 15 Pentecostal Church v. Newsom, 141 S. Ct. 2563 (2021). Due to its highly contagious 16 nature, its propensity to inflict dire health consequences, and its risk of overwhelming 17 hospitals across the country, the virus brought “ordinary life . . . to a grinding halt.” 18 COVID-19 did not spare California institutions of higher learning—including the three 19 20 21 22 23 24 25 26 27 28 1 The Court recites only those facts relevant to Plaintiffs’ pending Motion. It does not address claims or injuries alleged in the Complaint upon which Plaintiffs have not predicated their request for preliminary relief. The facts stated here are taken from the Complaint and its exhibits, the documents incorporated by reference to the Complaint, and the declarations submitted by both sides. This includes the declarations of Aimee Gallagher, Gregory Smith, and Cindy Vyskocil, who serve as the Vice Chancellors of Human Resources at GCCCD, SDCCD, and SOCCCD, respectively. (See Declaration of Aimee Gallagher (“Gallagher Decl.”) ¶ 2, Ex. 1 to Opp’n, ECF No. 68-1; Declaration of Gregory Smith (“Smith Decl.”) ¶ 1, Ex. 2 to Opp’n, ECF No. 68-2; Declaration of Cindy Vyskocil (“Vyskocil Decl.”) ¶ 2, Ex. 3 to Opp’n, ECF No. 68-3.) The evidentiary standard that governs proceedings for preliminary relief is relaxed. Disney Enters. v. VidAngel, Inc., 224 F. Supp. 3d 957, 966 n.1 (C.D. Cal. 2016). The Court “may give even inadmissible evidence some weight, when doing so serves the purpose of preventing irreparable harm.” Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (citing 11 C. Wright & Miller, Federal Practice and Procedure, Civil, § 2949 at 471 (1973)). -322cv0424 1 CCDs in this case—from its disruptive effect. In the early days of the pandemic, the 2 CCDs closed their doors and took their services online to prevent infection and disease 3 among their employees and students. (Opp’n at 7.) At that time, there was no widely 4 available or effective pharmaceutical tool for preventing and treating COVID-19 viral 5 infection. Branch, 6 F.4th at 934. But since then, science has enabled us not only to 6 better understand the virus but also it has delivered a new weapon to combat it: widely 7 available vaccines. Id. 8 Beginning in December 2020, the U.S. Food and Drug Administration (“FDA”) 9 approved three COVID-19 vaccines under an Emergency Use Authorization (“EUA”): a 10 Pfizer-BioNTech vaccine (December 11, 2020), a Moderna vaccine (December 18, 11 2020), and a Johnson & Johnson vaccine (February 27, 2021). (Compl. ¶ 69.) On 12 August 23, 2021, the FDA fully approved the Pfizer-BioNTech vaccine as a two-dose 13 series in persons 16 years or older; it remains under EUA for use in persons below 16. 14 (Id. ¶ 57 n. 4.) The Moderna and Johnson & Johnson vaccines were also authorized as a 15 two-dose series, but, as of the time of the TRO Application, remain under EUA. (Id.) 16 B. 17 Prior to the 2021-22 school year, each of the CCDs’ governing boards resolved to 18 confer their Chancellors with authority to develop and adopt policies requiring 19 compulsory vaccination. (See GCCCD Resolution, Ex. J to Compl.; SDCCD Resolution, 20 Ex. D to Mem.; SOCCCD Resolution, Ex. 1 to Vyskocil Decl.) 2 While the CCDs’ 21 Vaccine Requirements that ultimately materialized are separate and independent policies, 22 their substantial similarity enables this Court to analyze them singularly in the interests of 23 judicial economy and streamlining the constitutional questions at issue.3 CCDs’ Vaccine Requirements 24 25 26 27 28 2 Exhibits attached to the Complaint, the Memorandum, and the Vyskocil Declaration are annexed at ECF Nos. 1, 40-1, and 68-2, respectively. 3 The Court also observes that Plaintiffs do not claim there exists any constitutional distinction between the CCDs’ Vaccine Requirements. They allege the Requirements are unconstitutional for precisely the same reasons and even refer to them as a singular and uniform policy repeatedly throughout their Complaint and briefing. -422cv0424 1 The Court further notes that, as precedent has evolved throughout the pandemic, it 2 has become increasingly clear that where, as here, it is claimed a vaccination mandate 3 with religious exemptions derogates fundamental rights secured by the Free Exercise 4 Clause, the policy’s component parts—(1) the vaccine mandate and (2) the mechanism 5 for granting accommodations—both must pass constitutional muster. UnifySCC, 2022 6 WL 2357068, at *5 (collecting authorities) (observing “separately analyzing” the 7 mandate and accommodation frameworks of COVID-19 vaccination policies “aligns with 8 multiple circuit and district courts[’] [approach]”). 9 proper analysis of Plaintiffs’ free exercise claim, see infra Sec. III.B.2, this Court 10 separates below the mandate components of the CCDs’ Vaccine Requirements from the 11 accommodation frameworks, even though the parties do not do so themselves. 12 1. Accordingly, in order to enable The Mandates 13 The CCDs’ Vaccine Requirements mandate—by a date certain—all employees and 14 students either to be fully vaccinated and boosted against COVID-19 or to establish 15 entitlement to an eligible exemption (“Mandates”). The CCDs’ Vaccine Requirements 16 all recognize the same two exemptions: (1) a medical-condition exemption and (2) a 17 sincerely-held religious belief exemption. (See SDCCD Vaccine Requirement, Ex. E to 18 Compl.; SOCCCD Vaccine Requirement, Ex. 2 to Vyskocil Decl.; GCCCD Vaccine 19 Requirement, Ex. A to Gallagher Decl.) 4 Each CCD grounds its Mandate in guidance 20 and data from the Centers for Disease Control (“CDC”)—as well as other federal, state, 21 and local health agencies and organizations—identifying “vaccination against COVID-19 22 by as many people as possible a[] necessary measure to control and contain serious 23 illness, hospitalization, and loss of life due to COVID-19.” (GCCCD Board Resolution 24 at 1; SDCCD Resolution at 1; see also Vyskocil Decl. ¶ 6.) 25 26 27 28 4 Vice Chancellors Smith and Gallagher transmitted their respective CCD’s Vaccine Requirement to employees via email; SOCCCD’s Vaccine Requirement is set forth in a Memorandum of Understanding between SOCCCD, on the one hand, and Chapter 586 of the California School Employees Association, on the other hand (“MOU”). -522cv0424 1 The CCDs prescribe the methods pursuant to which unvaccinated employees and 2 students apply for one of these exemptions to the Mandates. The record submitted 3 reflects that all three institutions required employees and students seeking a sincerely- 4 held religious belief exemption to complete and submit a vaccination exemption form, 5 from which the CCDs’ respective Human Resources Departments would determine 6 whether to grant such an exemption. (See, e.g., GCCCD Vaccination Exemption Form, 7 Ex. J to Compl.; SDCCD Vaccination Exemption Form, Ex. V to Compl.; SOCCCD 8 Vaccination Exemption Form, Ex. DD to Compl.) 9 In varying terms, the CCDs warned employees who failed either to get vaccinated 10 or obtain an exemption by the date set for doing so would subject them to discipline. For 11 example, SOCCCD warned that failure to comply with the Mandate by the end of the 12 2021-22 school year would result in termination of employment. (SOCCCD Vaccine 13 Requirement § IV.10.) By contrast, SDCCD and GCCCD were vague as to the exact 14 repercussions employees face for failure to comply with their Mandates. 15 Vaccine Requirement at 3 (“Employees who do not submit their vaccination 16 documentation and are not approved for an exemption will be subject to discipline.”); 17 GCCCD Vaccine Requirement at 3.) 18 2. (SDCCD Accommodation Frameworks 19 Employees who successfully established their eligibility for one of the two 20 exemptions partook in an “interactive accommodation process” pursuant to which the 21 CCDs “determine[d] whether a reasonable accommodation to the [Mandates] could be 22 made without posing a health and safety risk to others” (“Accommodation Frameworks”). 23 (GCCCD Vaccine Requirement at 2; SDCCD Vaccine Requirement at 2; see also 24 SOCCCD Vaccine Requirement § II.3.) 25 GCCCD and SDCCD evaluated accommodations “on an individual basis within 26 the specific reasons for an exemption, work performed, environment in which work is 27 performed, and related relevant factors.” (GCCCD Vaccine Requirement at 2; SDCCD 28 Vaccine Requirement.) The record further reflects that SDCCD employed a -622cv0424 1 “Vaccination Exemption Accommodation Questionnaire” to evaluate accommodation 2 decisions for exempt employees. 3 “[R]easonable accommodations” under the GCCCD and SDCCCD Accommodation 4 Frameworks include “periodic COVID-19 testing, changes in work assignments, changes 5 in work schedules, changes in work location, and other appropriate measures.” (GCCCD 6 Requirement at 2; SDCCD Vaccine Requirement at 2.) The SDCCD Accommodation 7 Framework previously required exempt employees to submit to compulsory, twice- 8 weekly antigen testing, but SDCCD dropped this strand of its policy in May 2022. 9 (Smith Decl. ¶ 5.) (SDCCD Questionnaire, Ex. AA to Compl.) 10 In contrast to GCCCD and SDCCCD, SOCCCD does not disclose how its 11 Accommodation Framework Operates. The SOCCCD Vaccine Requirement does not list 12 any pertinent factors, nor does Vice Chancellor Vyskocil shed any light on the standard 13 employed by SOCCCD officials to determine accommodations. 14 Questionnaire; Vyskocil Decl.) However, possible accommodations under the SOCCCD 15 Accommodation Framework roughly approximate those offered to exemptees by 16 GCCCD and SDCCCD. That is, exempt SOCCCD employees “may be subject to other 17 safety measures beyond what is required for vaccinated individuals,” including but not 18 limited to “physical/social distancing; avoiding large gatherings; wearing acceptable 19 facial coverings and/or other personal protective equipment; frequent handwashing and 20 cleaning; practicing respiratory etiquette; and/or exclusion from the physical worksite 21 when warranted.” (SOCCCD Vaccine Requirement § II.3.) Moreover, like SDCCD, 22 SOCCCD requires exempt employees to submit to compulsory, weekly antigen testing; it 23 provides that failure to abide by the asymptomatic testing requirement results in adverse 24 employment action, including termination in the event of two missed tests. (Id. § I.8.) (See SOCCCD 25 26 27 28 -722cv0424 1 Vice Chancellor Vyskocil did not attest to whether that requirement had been lifted. (See 2 Vyskocil Decl.)5 3 C. 4 Plaintiffs in this lawsuit are six CCD employees and a student. (Compl. ¶¶ 4–10.) 5 The CCDs approved all Plaintiffs’ requests for sincerely-held religious belief exemptions. 6 (Gallagher Decl. ¶¶ 6–7; Vyskocil Decl. ¶¶ 14–15; Smith Decl. ¶ 8.) However, the 7 accommodations granted to each Plaintiff differs. 8 9 Plaintiffs Carlos de la Lama (“Lama”): Lama is a SDCCD employee who works in the Mathematics department. (Compl. ¶ 6.) SDCCD approved Lama’s request for a 10 sincerely-held religious belief exemption on October 28, 2021. (Id. ¶ 92; see Lama 11 Exemption Determination, Ex. Q to Compl.) 12 restricted Lama’s presence on campus for the Spring 2022 semester but accommodated 13 his religious exemption by allowing him to perform all his duties remotely for the 14 semester, subject to the requirement he test for COVID-19 weekly—whether 15 symptomatic or not. (Lama Accommodation Determination, Ex. T to Compl.; Smith 16 Decl. ¶ 5.) Lama accepted his accommodation. (Compl. ¶ 95.) On July 11, 2022, Vice 17 Chancellor Smith attested Lama continues to be covered by his sincerely-held religious 18 belief exemption, the decision to restrict him from in-person instruction is being 19 reassessed, and Lama no longer must submit to weekly asymptomatic antigen testing. Due to his unvaccinated status, SDCCD 20 21 22 23 24 25 26 27 28 5 At oral argument, each of the CCDs indicated slight changes to their Vaccine Requirements. GCCCD indicated that it will eliminate its Vaccine Requirement by the end of the year. SOCCCD represented that while its Mandate would remain in place, its masking and testing requirements— including those applicable only to exemptees on account of their unvaccinated status—had been lifted on August 29 and October 3, 2022, respectively. SDCCD stated that its Mandate remains in place. It further stated that it now requires mask compliance by all employees—not just unvaccinated, exempt ones. Finally, it represented that the two named Plaintiffs who are SDCCD employees have been placed on paid leave as an accommodation to their religious exemptions but warned those employees may face discipline—including termination—if they do not get vaccinated in the Spring 2023 semester. -822cv0424 1 (Id.) However, at oral argument, SDCCD represented Lama’s accommodation has since 2 been switched from remote work to requiring him to take paid leave.6 3 Dora Meza (“Meza”): Meza is a SDCCD employee who serves as a Student 4 Services Supervisor I. (Compl. ¶ 7.) SDCCD approved Meza’s request for a sincerely- 5 held religious belief exemption on November 5, 2021. (Id. ¶¶ 103–05; Meza Exemption 6 Determination, Ex. Z to Compl.) On February 7, 2022, SDCCD determined it could 7 accommodate Meza’s religious exemption by permitting her to continue working onsite, 8 provided she, inter alia, wear a face-covering at all times and test for COVID-19 9 weekly—whether symptomatic or not. (Meza Accommodation Determination, Ex. BB to 10 Compl.) Meza accepted her accommodation. (Id.) On July 11, 2022, SDCCD Vice 11 Chancellor Smith attested Meza continues to be covered by her sincerely-held religious 12 belief exemption and she no longer has to submit to asymptomatic antigen testing. 13 (Smith Decl. ¶ 5.) However, at oral argument, SDCCD represented it recently switched 14 Meza’s accommodation from onsite work to requiring her to take paid leave because the 15 new position to which she had recently been promoted does not permit Meza to undertake 16 necessary social distancing measures, nor can its duties be performed remotely.7 17 Mary Kate Planeta: Planeta is a SDCCD student. (Compl. ¶ 10.) SDCCD 18 approved her request for a sincerely-held religious belief exemption in the fall of 2021, 19 thereby enabling her to attend class in person pursuant to SDCCD policy. (Id. ¶¶ 136–37; 20 Planeta’s Exemption Determination, Ex. NN to Compl.) Vice Chancellor Smith attests 21 that SDCCD dropped its Vaccine Requirement for students on May 20, 2022. (Smith 22 Decl. ¶ 4(b).) Accordingly, Planeta is not subject to any vaccine mandate. Nor must she 23 24 25 26 27 28 6 As mentioned at supra note 5, SDCCD represented at oral argument Lama may face discipline if he does not get vaccinated by the Spring 2023 semester, including adverse employment action up to termination. 7 As mentioned at supra note 5, SDCCD represented at oral argument Meza may face discipline if she does not get vaccinated by the Spring 2023 semester, including adverse employment action up to termination. -922cv0424 1 abide by any other testing or masking requirement as a condition of participating in onsite 2 coursework and activities. 3 Jess Perez (“Perez”): Perez is a SOCCCD employee who works as a Senior 4 Administrative Assistant. (Vyskocil Decl. ¶ 14.) SOCCCD approved Perez’s request for 5 a sincerely-held religious belief exemption on December 8, 2021.8 (Compl. ¶¶ 117–18; 6 Perez Accommodation Determination, Ex. FF to Compl.) That same day, SOCCCD 7 granted Perez’s request for an accommodation to continue working onsite despite his 8 unvaccinated status, subject to the requirement that he test for COVID-19 twice 9 weekly—whether symptomatic or not. (Perez Exemption Determination.) SOCCCD 10 informed Perez he could take paid and, then, unpaid leave in the alternative. (Id.; 11 Vyskocil Decl. ¶ 14.) While it is unclear when and how Perez accepted the terms of his 12 accommodation, Vice Chancellor Vyskocil attested on July 11, 2022 that Perez was “in 13 good standing” and that, “[s]o long as [he] continues to comply with the twice-weekly 14 testing requirement . . ., there is no danger to [his] employment with SOCCCD.” 15 (Vyskocil Decl. ¶ 14.) 9 16 Paul Bonkowski (“Bonkowski”): Bonkowski is a SOCCCD employee who works 17 as the Lead Maintenance Worker in the Facilities, Maintenance & Operations 18 department. (Vyskocil Decl. ¶ 115.) SOCCCD approved Bonkowski’s request for a 19 sincerely-held religious belief exemption on November 17, 2021. 20 Bonkowski Exemption Determination, Ex. JJ to Compl.) That same day, SOCCCD 21 granted Bonkowski’s request for an accommodation to continue working onsite despite 22 his unvaccinated status, subject to the requirement that he test for COVID-19 twice 23 weekly—whether symptomatic or not. 24 SOCCCD informed Bonkowski he could instead take paid and, then, unpaid leave in the (Compl. ¶ 127; (Bonkowski Exemption Determination.) 25 26 27 28 8 SOCCCD also granted Perez’s request for a medical-condition exemption to the institution’s Mandate. (Compl. ¶ 117.) 9 At oral argument, SOCCCD proffered, and Perez—who attended the hearing—admitted, that Perez had resigned on October 31, 2022. - 10 22cv0424 1 alternative. 10 (Id.; Vyskocil Decl. ¶ 15.) While it is unclear when and how Bonkowski 2 accepted the terms of his accommodation, Vice Chancellor Vyskocil attested on July 11, 3 2022 that Bonkowski was “in good standing” and that, “[s]o long as [he] continues to 4 comply with the twice-weekly testing requirement . . ., there is no danger to [his] 5 employment with SOCCCD.” (Vyskocil Decl. ¶ 15.) 6 Judy George (“George”): George was a GCCCD employee who served as a full- 7 time Chemistry instructor. (Gallagher Decl. ¶¶ 6, 9.) GCCCD approved her request for a 8 sincerely-held religious belief exemption on December 1, 2021. (Compl. ¶ 79; see also 9 Gallagher Decl. ¶ 6.) In early January 2022, GCCCD informed George that, because the 10 “essential functions of her teaching position required proximity to students and staff 11 throughout the workday . . . remote work was not a reasonable accommodation [for her].” 12 (Gallagher Decl. ¶ 6.) However, GCCCD informed George that, “while remote work was 13 not a reasonable accommodation, the use of her accrued paid or unpaid leave through 14 June 30, 2022 as an accommodation was approved.” (Id.) Although George accepted 15 this accommodation, she tendered her retirement papers in February 2022; the GCCCD 16 governing board accepted George’s resignation in March and her retirement became 17 effective July 2022. (Id. ¶ 9.) Hence, George is no longer employed by GCCCD. (Id.) 18 Patricia Sparks (“Sparks”): Sparks is a GCCCD employee who serves as an 19 Administrative Assistant IV. (Gallagher Decl. ¶ 7.) GCCCD approved Sparks’ request 20 for a sincerely-held religious belief exemption on January 21, 2022. (Compl. ¶ 87; 21 Gallagher Decl. ¶ 7; Sparks Exemption Determination, Ex. N to Compl.) On January 21, 22 2022, GCCCD determined that, because “the essential functions of her position required 23 10 24 25 26 27 28 During the “interactive accommodation process,” Bonkowski raised a religious objection to testing for COVID-19. (Compl. ¶ 133.) He is the only Plaintiff alleged to have raised this objection at any stage of the exemption and accommodation process. Vice Chancellor Vyskocil immediately dismissed Bonkowski’s objection, citing statements Bonkowski previously made in his exemption application, which belied the premise he harbored a religious-based objection to antigen testing. She informed Bonkowksi he had two options: either agree to SOCCCD’s testing requirements or accept paid and/or unpaid leave. (See Email Correspondence between Bonkowski and Vyskocil, Ex. LL to Compl.) - 11 22cv0424 1 her physical presence at a front desk location . . .[,] remote work was not a reasonable 2 accommodation.” (Gallagher Decl. ¶ 7.) However, GCCCD informed Sparks that, 3 “while remote work was not a reasonable accommodation, the use of her accrued paid or 4 unpaid leave through June 30, 2022 as an accommodation was approved.” (Id.) Vice 5 Chancellor Gallagher attests that GCCCD revised Sparks’ accommodation on June 14, 6 2022, pursuant to an institution-wide reassessment. (Id. ¶ 10.) GCCCD determined that 7 Sparks could work onsite, notwithstanding she remains unvaccinated, provided that “she 8 wears a mask.” (Id.) Sparks accepted these terms and returned from leave on July 5, 9 2022. (Id.) However, GCCCD represented at oral argument that its accommodations 10 requiring testing and, more relevant to Sparks, masking had been eliminated, and that its 11 Mandate would be lifted effective December 2022. 12 D. 13 On March 30, 2022, Plaintiffs commenced the instant action, naming as 14 Defendants over thirty individuals and entities associated with the CCDs, including the 15 CCDs themselves. (Compl. ¶¶ 11–47.) The Complaint asserts a facial challenge to the 16 CCDs’ Vaccine Requirements premised on a myriad of constitutional grounds and Title 17 VII of the Civil Rights Act.11 Specifically, the Complaint lodges the following claims: 12 This Lawsuit 18 19 20 21 22 23 24 25 26 27 28 11 A constitutional challenge to a statute can be either “facial” or “as-applied.” Nicholas Quinn Rosenkranz, The Subjects of the Const., 62 Stan. L. Rev. 1209, 1235–42 (2010); see also Young v. Hawaii, 992 F.3d 765, 779 (9th Cir. 2021), vacated on other grounds 142 S. Ct. 2895 (Mem.) (2022). A “facial challenge is a challenge to an entire legislative enactment or provision.” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). “[I]f a [government law, rule, or policy] is found facially defective it ‘is void in toto, barring all further actions under it, in th[e instant], and every other case[.]” Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 5, 32 n.134. For that reason, “[i]t is no secret that a facial challenge to a statute is more difficult to prove than an as-applied challenge.” Young, 992 F.3d at 779 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Conversely, an as-applied challenge “is a claim directed at the execution of the law as to plaintiff.” Id.; see Richard H. Fallon, Jr., As-Applied & Facial Challenges & Third-Party Standing, 113 Harv. L. Rev. 1321, 1334 (2000)). Here, the Complaint is devoid of allegations that raise even an inference Plaintiffs seek to launch as-applied challenges to the CCDs’ Vaccine Requirements. Plaintiffs clearly seek to invalidate them in toto. Hence, their challenge is strictly facial. - 12 22cv0424 1 (1) Count I: The CCDs’ Vaccine Requirements violate the Equal Protection 2 Clause of the Fourteenth Amendment because the accommodation regimes 3 require exempt employees to undertake COVID-19 mitigation measures, 4 namely testing and masking, that are not required of vaccinated employees 5 (Compl. ¶¶ 219–28); 6 (2) Count II: The CCDs’ Vaccine Requirements violate Plaintiffs’ Substantive Due Process right to liberty under the Fifth Amendment (id. ¶¶ 229–34); 7 8 (3) Count III: The CCDs’ Vaccine Requirements violate Plaintiffs’ Substantive 9 Due Process right to bodily integrity under the Fifth Amendment (id. ¶¶ 235– 55); 10 11 (4) Count IV: The CCDs’ Vaccine Requirements violate the Free Exercise Clause of the First Amendment (id. ¶¶ 256–76) 13; 12 13 (5) Count V: The CCDs’ Vaccine Requirements violate Plaintiffs’ Substantive 14 Due Process rights to privacy under the Fifth Amendment (id. ¶¶ 277–86); 15 (6) Count VI: The CCDs’ Vaccine Requirements violate Plaintiffs’ Fourth 16 Amendment right against unreasonable search and seizures (id. ¶¶ 287–97); 17 and 18 19 20 21 22 23 24 25 26 27 28 12 Although the Complaint asserts eight causes of action, the eighth cause of action, which is a claim under 42 U.S.C. § 1983, is not a cognizable, standalone claim. Graham v. Connor, 490 U.S. 386, 393–94 (1989). 13 The Court does not construe the Complaint as alleging any Plaintiff has a religious objection to testing or masking. As explained above, only one Plaintiff—Bonkowski—ever appeared to espouse religious objection to a CCDs’ testing and/or masking requirements. (Compl. ¶ 133.) He does not renew that objection in the Complaint. The Complaint contains just a single allegation in its approximately 400 enumerated paragraphs that even suggests Plaintiffs have religious objections to those preventative measures: it is entirely conclusory. (Compl. ¶ 274 (“Their sincerely held religious belief compels [Plaintiffs] to abstain from receiving any of the currently available COVID-19 vaccines and tests.” (emphasis added)).) The Complaint is otherwise devoid of any facts from which this Court could infer a free exercise claim against the masking and testing components of the CCDs’ Vaccine Requirements. See Walker v. Beard, 789 F.3d 1125, 1138 (9th Cir. 2015) (“In general, a plaintiff will have stated a free exercise claim if: (1) ‘the claimant’s proffered belief [is] sincerely held’; and (2) ‘the claim [is] rooted in religious belief, not in purely secular philosophical concerns.’” (quoting Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994))). - 13 22cv0424 1 (7) Count VII: The CCDs’ Vaccine Requirements violate Title VII of the Civil 2 Rights Act because the accommodations implemented discriminate on the basis 3 of religion (id. ¶¶ 298–308). 14 4 After waiting almost three months, Plaintiffs served Defendants with the 5 Complaint on June 20, 2022. (See Certificates of Service, ECF Nos. 3–26; Waivers of 6 Service, ECF Nos. 26–39.) That same day, Plaintiffs filed the instant TRO Application, 7 ex parte, effectively seeking to enjoin the CCDs’ Vaccination Requirements. (TRO App. 8 at 1:17-22.) On June 23, 2022, this Court ordered Plaintiffs to serve Defendants with 9 their TRO Application, which they did. (Order, ECF No. 42; Affidavits of Service, ECF 10 Nos. 43–59.) In support of their TRO Applications, Plaintiffs submitted their 11 Memorandum and 26 declarations, only five of which are on behalf of a named Plaintiff 12 in this case.15 Defendants filed their consolidated Opposition on July 12, 2022. (ECF 13 No. 68.) Plaintiffs replied on July 20, 2022. (ECF No. 71.) The Court held a hearing on 14 Plaintiffs’ preliminary injunction and Defendants’ pending motion to dismiss (ECF No. 15 72) on November 2, 2022. 16 // 17 // 18 // 19 20 21 22 23 24 25 26 27 28 14 Plaintiffs devote substantial space in both their Complaint and Memorandum to attacking the CCDs’ authority under California law to issue the Vaccine Requirements. But Plaintiffs never tie those allegations and legal arguments to one of the above-mentioned federal constitutional or statutory claims. To the extent Plaintiffs allege the CCDs’ Vaccine Requirements overstep the powers conferred to California pursuant to the Tenth Amendment, there does not exist a cognizable claim for violation of a state’s police powers under the Constitution; a plaintiff must base their claim on one of the Constitution’s restrictions on state government. Forbes v. Cty. of San Diego, No. 20-cv-0998-BAS-JLB, 2021 WL 843175, at *3 (S.D. Cal. Mar. 4, 2021) (citing Bimber’s Delwood, Inc. v. James, 496 F. Supp. 3d 760 (W.D.N.Y. 2020)). 15 Plaintiffs’ George, Sparks, Meza, Planeta, and Perez annex their declarations to the Memorandum. (See Declaration of Judy George (“George Decl.”), Ex. 16 to Mem., ECF No. 40-17; Declaration of Patricia Sparks (“Sparks Decl.”), Ex. 17 to Mem., ECF No. 40-18; see also Declaration of Dora Meza, Ex. 1 to Mem., ECF No. 40-2; Declaration of Mary Kate Planeta, Ex. 4 to Mem., ECF No. 40-6; Declaration of Jess Perez, Ex. 23 to Mem., ECF No. 40-24.) - 14 22cv0424 1 II. LEGAL STANDARD 2 It is well-settled the standards for issuing a temporary restraining order and a 3 preliminary injunction are “substantially identical.” Stuhlbarg Int’l Sales Co., Inc. v. 4 John D. Brushy & Co., 240 F.3d 832, 839 & n.7 (9th Cir. 2001). A court’s power to 5 rearrange the relationship of parties prior to a determination on the merits through the 6 ordinary course of litigation is “an extraordinary remedy that may only be awarded upon 7 a clear showing that the plaintiff is entitled to [preliminary relief].” Winter v. Nat. Res. 8 Def. Council, Inc., 555 U.S. 7, 24 (2008). 9 persuasion. Hill v. McDonough, 547 U.S. 573, 584 (2006). The moving party has the burden of 10 Plaintiffs seeking preliminary relief “must establish that (1) they are likely to 11 succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of 12 preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary 13 injunction is in the public interest.” Sierra Forrest Legacy v. Rey, 577 F.3d 1015, 1021 14 (9th Cir. 2009) (citing Winter, 555 U.S. at 20). In the Ninth Circuit, courts may apply the 15 “sliding scale” analysis as an alternative to the Winter test. All. for the Wild Rockies v. 16 Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011) (interpreting Winter and explaining 17 that the “sliding scale” test for pre-trial injunctive relief remains valid). Under this 18 analytical framework, “if a plaintiff can only show that there are serious questions going 19 to the merits—a lesser showing than likelihood of success on the merits—then a 20 preliminary injunction may still issue if the balance of hardships tips sharply in the 21 plaintiff’s favor, and the other two Winter factors are satisfied.” Friends of the Wild 22 Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations 23 omitted; emphasis in original); see Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 24 F.2d 1415, 1421 (9th Cir. 1984) (defining a “serious question” as one which the plaintiff 25 “has a fair chance of success on the merits”). 26 But even if the court employs the sliding-scale approach, pre-trial injunctive relief 27 may not issue if the movant fails to show the existence of any one Winter factor. 28 - 15 22cv0424 1 Cottrell, 632 F.3d at 1132 (providing that all four factors must be satisfied even under a 2 sliding-scale analysis). 3 III. ANALYSIS 4 A. 5 Before delving into the Winter factors, the Court takes a moment to paint the legal 6 Jacobson and Subsequent Supreme Court Precedent landscape in which this action takes place. 7 The Tenth Amendment provides, “The powers not delegated to the United States 8 by the Constitution, nor prohibited to it by the states, are reserved to the states 9 respectively, or the people.” U.S. Const. amend. X. “The States’ traditional police 10 power is defined as the authority to provide for the public health, safety, and morals.” 11 Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991); Velasquez-Rios v. Wilkinson, 988 12 F.3d 1081, 1088–89 (9th Cir. 2021) (“Historically, the states’ police powers are broad in 13 permitting state decisions that relate to public health, safety, and welfare, so long as state 14 laws do not violate the federal Constitution.” (citing Chi., B. & Q. Ry. Co. v. Illinois, 200 15 U.S. 561, 584 (1906)). “States traditionally have had great latitude under their police 16 powers to legislate as to the protection of the lives, limbs, [and] health . . . of all persons.” 17 Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (quoting Metro. Life Ins. Co. v. 18 Massachusetts, 471 U.S. 724, 756 (1985)). 19 Since Jacobson v. Massachusetts, 197 U.S. 11 (1905), it has been well-settled for 20 approximately 115 years that embedded within the States’ police power is the power to 21 issue vaccine mandates, as necessary for public health. Zucht v. King, 260 U.S. 174, 176 22 (1920) (“[It is] settled that it is within the police power of a state to provide for 23 compulsory vaccination.”) At issue in Jacobson was a law Massachusetts passed amid a 24 horrific outbreak of smallpox. In essence, the State authorized its municipalities to 25 institute compulsory vaccination as necessary for public health and safety, and to use 26 criminal penalties as a method to enforce compliance. Pursuant to this law, Cambridge 27 passed an ordinance mandating smallpox vaccination for all adults within the jurisdiction, 28 without exemption. Cambridge provided a lone exemption for children whose parents - 16 22cv0424 1 were able to present a physician-signed certificate excusing them from compulsory 2 vaccination. 3 residing in Cambridge—to submit to vaccination, he refused. Jacobson was arrested, 4 prosecuted, found guilty, and jailed until he agreed to pay the $5.00 criminal fine. 197 5 U.S. at 13–14, 21. But when the time came for Henning Jacobson—a Swedish minister 6 Following his release, Jacobson challenged the legality of the Massachusetts law 7 authorizing the Cambridge ordinance, eventually reaching the Supreme Court. Jacobson, 8 197 U.S. at 11. Jacobson alleged the law derogated rights secured to him via the 9 Fourteenth Amendment because “a compulsory vaccination law is unreasonable, 10 arbitrary, and oppressive, and therefore, hostile to the inherent right of every freeman to 11 care for his own body and health in such way as to him seems best,” and that enforcement 12 of a vaccine mandate upon an objector is “nothing short of an assault upon his person,” 13 no matter the reason for the objection. 16 Id. at 26. 14 Jacobson’s challenge, finding “a community has the right to protect itself against an 15 epidemic of disease which threatens the safety of its members.” Id. at 27. Effectively 16 applying what is known in today’s modern constitutional framework as “rational basis 17 review,” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) 18 (Gorsuch, J., concurring) (comparing Jacobson’s “reasonableness” standard with the 19 modern rational basis test), the Jacobson Court concluded compulsory vaccination 20 against smallpox—without exception—was a reasonable and appropriate use of 21 Massachusetts’ police powers. Moreover, the Supreme Court reasoned the Massachusetts 22 law did not derogate or infringe upon any fundamental right, Jacobson, 197 U.S. at 26. 23 Id. (“There is, of course, a sphere within which the individual may assert the supremacy 24 of his own will, and rightfully dispute the authority of any human government— 25 especially of any free government existing under a written constitution, to interfere with The Supreme Court rejected 26 27 28 16 Notably, Henning Jacobson did not invoke the fundamental rights under the First Amendment alleged to be at issue here. See Jacobson, 197 U.S. at 14. - 17 22cv0424 1 the exercise of that will. But it is equally true that in every well-ordered society charged 2 with the duty of conserving the safety of its members the rights of the individual in 3 respect of his liberty may at times, under the pressure of great danger, be subjected to 4 such restraint, to be enforced by reasonable regulations, as the safety of the general public 5 may demand.”). 6 In many ways, the Supreme Court’s oldest precedent concerning the 7 constitutionality of compulsory vaccination remains its touchstone. More than a century 8 after the Jacobson decision, courts have consistently applied that precedent throughout 9 the instant pandemic to uphold mandatory vaccination policies. Legaretta v. Macias, --- 10 F. Supp. 3d. ---, 2022 WL 1443014, at *10 (D.N.M. May 6, 2022) (observing “[i]n the 11 context of the current pandemic, courts consistently have applied Jacobson to [uphold] 12 mandatory vaccine policies” and collecting similar cases citing Jacobson as 13 authoritative); accord We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 281 n.35 (2d 14 Cir. 2021) (per curiam) (“[F]or over 100 years [Jacobson] has stood firmly for the 15 proposition that the urgent public health needs of the community can outweigh the rights 16 of an individual to refuse vaccination. Jacobson remains binding precedent.”). 17 This Court also finds Jacobson instructive for another reason: it underscores that 18 in assessing States’ rationale for imposing compulsory vaccination mandates in the 19 interest of public health and safety, federal courts must remain faithful to the core 20 principle of federalism. This requires Article III courts to assume the relevant State body 21 was “aware of [] opposing theories” as to how best to mitigate viral outbreak, and was 22 “compelled, of necessity,” to institute a vaccination mandate. Jacobson, 197 U.S. at 30– 23 31. Put differently, Jacobson stands for the legal premise that where a challenge fails to 24 allege a State-issued vaccine mandate abuts upon some fundamental right, it is not the 25 federal courts’ role to second guess the State’s difficult determination that compulsory 26 vaccination is the most effective measure to protect public health. Id. at 30 (“[It is] no 27 part or function of a court . . . to determine which one of the two modes was likely to be 28 the most effective for protection of the public against disease.”). - 18 22cv0424 1 But it would be a mistake to assume Jacobson is dispositive of every vaccine 2 mandate to come before a federal court on a constitutional challenge. Calvary Chapel 3 Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (Alito, J., dissenting) (“[I]t is a mistake 4 to take the language in Jacobson as the last word on what the [C]onstitution allows public 5 officials to do during the pandemic.”). Recent Supreme Court decisions in Roman 6 Catholic Diocese, 141 S. Ct. at 63, and Calvary Chapel, 140 S. Ct. at 2603 appear to 7 confirm Jacobson does not displace modern constitutional analysis but rather fits within 8 it; “the traditional legal test associated with the right at issue” still governs even 9 challenges to compulsory vaccination. Roman Catholic Diocese, 141 S. Ct. at 70. 10 Henning Jacobson’s Fourteenth Amendment claim did “not involve suspect 11 classifications based on race or some other [suspect class],” nor did Jacobson allege the 12 Massachusetts law infringed upon some other fundamental right secured by the 13 Constitution. Id. (citing Jacobson, 197 U.S. at 27). Hence, in applying a predecessor 14 version of rational basis review, the Jacobson Court handled the challenge to 15 Massachusetts’ vaccine mandate no differently than would a federal court today under the 16 predominant constitutional framework. Id. 17 But where different rights are involved, different standards of constitutional 18 analysis must follow. This approach includes the Free Exercise Clause, which entails 19 strict scrutiny for “law[s] burdening religious practice that is not neutral or not of general 20 application.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 21 (1993); Calvary Chapel, 140 S. Ct. at 2608 (“Language in Jacobson must be read in 22 context, and it is important to keep in mind that Jacobson primarily involved a 23 substantive due process challenge . . . . It is a considerable stretch to read the decision as 24 establishing the test to be applied when statewide measures of indefinite duration are 25 challenged under the First Amendment or other provisions not at issue in that case.”). It 26 also includes the Equal Protection Clause, which requires more exacting analysis of state 27 laws that classify “suspect” and “quasi-suspect” groups of people. See City of Cleburne 28 v. Cleburne Living Ctr., 473 U.S. 432, 440–41 (1985). - 19 22cv0424 1 Simply put, Supreme Court precedent (including Jacobson) mandates that this 2 Court assess the nature of each constitutional right alleged to be at stake, and then 3 conduct “a tiered-application of the requisite standard of judicial review and attendant 4 levels of deference to [the CCDs].” Halgren v. City of Naperville, 577 F. Supp. 3d 700, 5 727 (N.D. Ill. 2021). The Court follows this approach below in assessing the likelihood 6 Plaintiffs will succeed on the merits of the claims on which they predicate their Motion 7 for a preliminary injunction. 8 B. 9 The first Winter factor requires Plaintiffs to demonstrate “serious questions going 10 to the merits” of their claims, and that they are likely to succeed on those questions of 11 merit. Likelihood of Success on the Merits 12 Plaintiffs predicate their request for pre-trial relief upon three of their seven total 13 claims: their equal protection claim (Count I); their free exercise claim (Count IV); and 14 their Title VII claim (Count VII). Because the burden of establishing entitlement to a 15 preliminary injunction rests with Plaintiffs, the Court considers likelihood of success only 16 for those claims Plaintiffs endeavored to show warrant relief. 17 1. Equal Protection 18 “The Equal Protection [C]lause of the Fourteenth Amendment commands that no 19 State shall deny to any person within its jurisdiction the equal protection of the laws,’ 20 which is essentially a direction that all persons similarly situated should be treated alike.” 21 Cleburne, 473 U.S. at 439 (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). 22 An equal protection claim may be established in two ways. First, Plaintiffs may 23 claim Defendants intentionally discriminated against them based upon their membership 24 in a protected class. See, e.g., Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001); 25 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005). This theory triggers 26 strict scrutiny review of the subject law, rule, or policy. Fisher v. Univ. of Tex. at Austin, 27 570 U.S. 297, 307–08 (2013). Second, Plaintiffs may claim membership of a non-suspect 28 group that Defendants treated differently than similarly situated individuals, without any - 20 22cv0424 1 rational basis or legitimate governmental purpose for doing so. Vill. of Willowbrook v. 2 Olech, 528 U.S. 562, 564 (2000); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 93 3 (1973). 4 Plaintiffs acknowledge unvaccinated individuals do not constitute a suspect class 5 and, thus, their equal protection claim does not trigger strict scrutiny. (Compl. ¶ 226 6 (alleging Plaintiffs’ equal protection claim triggers rational basis review).) 7 Plaintiffs allege an equal protection claim under the second of the above-mentioned 8 theories. To prevail on this sort of equal protection claim, Plaintiffs must prove three 9 essential elements: (1) they are members of an identifiable class; (2) they were treated 10 differently from others similarly situated; and (3) there is no rational basis for the 11 difference in treatment. Vill. of Willowbrook, 528 U.S. at 564. Instead, 12 Plaintiffs concede the CCDs have a legitimate interest in “control[ling] the 13 exposure and minimiz[ing] the spread of COVID-19 in the workplace” (Compl. ¶ 268) 14 but contend requiring only unvaccinated CCD employees to undertake additional 15 preventative measures, like testing and masking, is an “arbitrary and irrational” means to 16 that end (id. ¶¶ 226–27). According to Plaintiffs, the “[c]urrent scientific understanding 17 of the COVID-19 [] is that both [vaccinated and unvaccinated individuals] may contract 18 and spread the virus,” and, thus, both groups are equally capable of causing a COVID-19 19 campus outbreak. (Id. ¶ 227.) Hence, COVID-19 mitigation measures that target only 20 the unvaccinated violate the Equal Protection Clause. 21 Plaintiffs’ assertion vaccinated and unvaccinated CCD employees and students are 22 similarly situated regarding the risk of transmitting COVID-19 rests upon their 23 contentions about vaccine efficacy. They interpret various CDC statements and data as 24 essentially demonstrating vaccines do not provide any material protection against Delta- 25 variant derived infection and, therefore, largely are useless in stemming the spread of 26 COVID-19. In particular, Plaintiffs proffer: 27 28 • A statement, dated July 30, 2021, from CDC Director Rochelle P. Walensky, MD, MPH, indicating the CDC now “recommend[s] that - 21 22cv0424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 everyone wear a mask in indoor public settings in areas of substantial and high transmission, regardless of vaccination status,” in light of data indicating that, “unlike with other variants, vaccinated people infected with Delta can [catch and] transmit the virus.” Statement of CDC Director Rochelle P. Walensky, MD, MPH, on Today’s Morbidity and Mortality Weekly Report (“Walensky Statement”), available at https://www.cdc.gov/media/releases/2021/s0730-mmwrcovid-19.html (last accessed October 28, 2022); (see Compl. ¶ 52 (citing Walensky Statement).) • An August 5, 2021 interview of Walensky by Wolf Blitzer on CNN, during which she stated “[vaccines] continue to work well with ‘Delta’ with regard to severe illness and death, but what they can’t do anymore is prevent transmission.” (Compl. ¶ 54.) • A document published by the CDC to its website on September 15, 2021, entitled “Science Brief: COVID-19 Vaccines and Vaccination” (“Science Brief”), which states, “For the Delta variant, early data indicate vaccinated and unvaccinated persons infected with Delta have similar levels of viral RNA and culturable virus detected, indicating that some vaccinated people infected with the Delta variant . . . may be able to transmit the virus to others.” Science Brief, available at https://www.cdc.gov/coronavirus/2019-ncov/science/sciencebriefs/fully-vaccinated-people.html (last accessed October 28, 2022); (Compl. ¶ 57.) • CDC’s “Morbidity and Mortality Weekly Report” for January 28, 2022 (“MMWR”), finding that data from New York and California indicated “infection-derived protection was higher after the Delta variant became predominant, a time when vaccine-induced immunity for many persons declined because of immune evasion and immunological waning.” CDC MMWR, available at https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e1.htm (last accessed October 28, 2022); (Compl. ¶ 67.) “The Equal Protection Clause does not forbid classifications. It simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (citing F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)); Wright v. Incline Vill. Gen. Improvement 28 - 22 22cv0424 1 Dist., 665 F.3d 1128, 1140 (9th Cir. 2011) (“Evidence of different treatment of unlike 2 groups does not support an equal protection claim.”). As a matter of logic, unvaccinated 3 and vaccinated persons are “in all relevant respects alike” only if they pose an 4 approximately equal risk of transmitting COVID-19 to others. The Science Report and 5 MMWR Plaintiffs proffer do not support that premise. In fact, they belie it. MMWR 6 (“[V]accination remains the safest and primary strategy to prevent [COVID-19] 7 infections.”). 8 For example, the Science Brief states, “data show fully vaccinated persons are less 9 likely than unvaccinated persons to acquire [COVID-19],” and that “[i]nfections with the 10 Delta variant in vaccinated persons potentially have reduced transmissibility than 11 infections in unvaccinated persons, although additional studies are needed.” Science 12 Brief. 13 vaccinated persons caused by the Delta variant . . . may be transmissible to others . . ., 14 [COVID-19] transmission between unvaccinated persons is the primary cause of 15 continued spread.” Id. (emphasis added). It further states that although “[e]arly evidence suggests infections in fully 16 While the MMWR’s findings are more nuanced, they, too, fail to buttress 17 Plaintiffs’ allegations of substantial similarity. As an initial matter, Plaintiffs appear to 18 rely heavily upon the MMWR’s findings that—once the Delta variant became 19 “predominant” in October 2021—case rates among those who had survived a prior 20 infection—both vaccinated and unvaccinated—were lower than among those who had 21 never caught the virus. MMWR (“Rates among vaccinated persons without a previous 22 COVID-19 diagnosis were consistently higher than rates among unvaccinated persons 23 with a history of COVID-19 (3.1-fold higher . . . in California and 1.9-fold higher in New 24 York).”). 25 allegations. Plaintiffs do not allege they have infection-derived immunity. Nor do they 26 allege membership in a more circumscribed class of unvaccinated individuals consisting 27 only of those with a prior COVID-19 diagnosis. But this information is inapposite to Plaintiffs’ substantial similarity 28 - 23 22cv0424 1 Even if Plaintiffs had, the MMWR still militates against a finding the groups are 2 similarly situated. The MMWR shows that for individuals with a prior COVID-19 3 diagnosis, case rates among vaccinated persons were multi-fold lower than unvaccinated 4 persons. MMWR (“[C]ompared with COVID-19 case rates among unvaccinated persons 5 without a previous COVID-19 diagnosis, case rates were . . . 29.0-fold lower (California) 6 and 14.7-fold lower (New York) among unvaccinated persons with a previous diagnosis, 7 and 32.5-fold (California) and 19.8-fold lower (New York) among vaccinated persons 8 with a previous diagnosis[.]”). 9 additional layer of immunological protection against the Delta variant beyond infection- 10 derived immunity. It cannot be said that vaccinated and unvaccinated individuals are “in 11 all relevant respects alike” if the key evidence proffered by Plaintiffs demonstrates the 12 degree of transmission is materially higher among unvaccinated individuals. Thus, the MMWR suggests vaccination provides an 13 Plaintiffs’ equal protection claim is doomed if all they can proffer to show 14 unvaccinated and vaccinated CCD employees and students are similarly situated is the 15 Science Brief and MMWR. Accordingly, the Court concludes Plaintiffs fail to satisfy the 16 first Winter factor as to Count I. 17 2. Free Exercise 18 The Free Exercise Clause of the First Amendment provides, “Congress shall make 19 no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend. I. “[L]aws 20 incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free 21 Exercise [C]lause so long as they are neutral and generally applicable.” Fulton v. City of 22 Philadelphia, --- U.S. ----, 141 S. Ct. 1868, 1876 (2021) (citing Emp’t Div., Dep’t of 23 Human Res. of Or. v. Smith, 494 U.S. 872, 878–82 (1990)). 24 If a challenged rule or policy is neutral and generally applicable, the Ninth Circuit 25 instructs its district courts to employ rational basis review, which asks whether the 26 government action at issue is “rationally related to a legitimate governmental purpose.” 27 Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015). Rational basis review is 28 the lightest and most deferential form of constitutional scrutiny. See Jane R. Bambauer & - 24 22cv0424 1 Toni M. Massaro, Outrageous and Irrational, 100 Minn. L. Rev. 281, 340 (2015) 2 (describing rational basis review as “the lightest of checks on government power”—a 3 “floor test[] [that is] hard for the government to flunk”). However, if a challenged rule or 4 policy is not neutral or is not generally applicable, strict scrutiny applies. Lukumi, 508 5 U.S. at 531–34. This rigorous standard requires the government to “demonstrate its 6 course was justified by a compelling state interest and was narrowly tailored in pursuit of 7 that interest.” Kennedy v. Bremerton Sch. Dist., --- U.S. ----, 142 S. Ct. 2407, 2422 8 (2022) (citing Lukumi, 508 U.S. at 546). 9 The Court now separately considers whether the Mandates and the 10 Accommodation Frameworks of the CCDs’ Vaccine Requirements are neutral and 11 generally applicable, and then applies the appropriate tier of scrutiny. 12 13 a. Mandates i. Fulton Analysis 14 Plaintiffs do not contest the Mandates are neutral. Instead, they aver the Mandates 15 are not generally applicable because they include religious exemptions. Nevertheless, the 16 Court analyzes both neutrality and generally applicability in the interest of completeness. 17 Neutrality: “Government fails to act neutrally when it proceeds in a manner 18 intolerant of religious beliefs or restricts practices because of their religious nature.” 19 Fulton, 141 S. Ct. at 1877 (citing Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights. 20 Comm’n, --- U.S.---, 138 S. Ct. 1719, 1730–32 (2018)). Neutrality encapsulates two 21 separate but related concepts: “facial neutrality” and “operational neutrality.” Lukumi, 22 508 U.S. at 533–40. “A policy must be both facially and operationally neutral to avoid 23 strict scrutiny.” UnifySCC, 2022 WL 2357068, at *6. 24 “A law lacks facial neutrality if it refers to a religious practice without secular 25 meaning discernable from the language or context.” Stormans, 794 F.3d at 1076 (quoting 26 Lukumi, 508 U.S. at 533). In the domain of COVID-19 vaccine requirements, the Ninth 27 Circuit instructed in Doe v. San Diego Unified School District, 19 F.4th 1173, 1178 (9th 28 Cir. 2021), that a mandate which makes no reference to religion is facially neutral. Other - 25 22cv0424 1 circuit courts have provided additional color concerning the hallmarks of a facially 2 neutral vaccine requirement. For example, the Second Circuit in We The Patriots USA, 3 17 F.4th at 281, held COVID-19 vaccine mandates that “do[] not single out employees 4 who decline vaccination on religious grounds” but rather “appl[y] to all ‘personnel’” 5 qualify as “facially neutral” under Fulton and its predecessors. See also Kane v. De 6 Blasio, 19 F.4th 152, 163 (2d Cir. 2021) (holding COVID-19 vaccine mandate is “neutral 7 on its face” because it applies to “all” staff and contractors). 8 A rule lacks operational neutrality if, despite being facially neutral, it operates in 9 such a way that “impermissibly attempt[s] to target religious practices through careful 10 legislative drafting.” Lukumi, 508 U.S. at 534–35. Put differently, the operational 11 neutrality inquiry is essentially a stopgap; it forecloses application of rational basis 12 review to government action that, despite not referencing religion, is designed to target 13 “religious conduct for distinctive treatment” through its operation, not to accomplish 14 legitimate policy objects. Id. 15 The Court is persuaded by the reasoning of the Honorable Beth Labson Freeman, 16 Northern District of California, in UnifySCC, 2022 WL 2357068, at **8–10, where she 17 assessed the neutrality of a substantially similar workplace vaccine mandate instituted by 18 the county of Santa Clara. Like the Mandates here, in UnifySCC, Santa Clara instituted a 19 compulsory vaccination policy making no reference to religion—beyond providing an 20 exemption for religious reasons—and that did not “single out employees who decline 21 vaccination on religious grounds.” Id. (quoting We The Patriots, 17 F.4th at 281). There, 22 as here, the UnifySCC plaintiffs did not present an iota of evidence showing the true 23 object of the facially neutral mandate was to attack protected religious conduct. Id. 24 From these facts, District Judge Freeman concluded the Santa Clara COVID-19 policy 25 would likely be found to be entirely neutral. Similarly, this Court concludes Plaintiffs 26 have failed to demonstrate they are likely to succeed in proving the Mandates are not 27 facially or operationally neutral. 28 - 26 22cv0424 1 General Applicability: “A government policy will fail the general applicability 2 requirement if it ‘prohibits religious conduct while permitting secular conduct that 3 undermines the government’s asserted interests in a similar way,’ or if it provides ‘a 4 mechanism for individualized exemptions.’” 5 Fulton, 141 S. Ct. at 1877). This Court’s survey of case law elucidates the use of 6 amorphous standards, like “good cause,” to administer exemptions, Smith, 494 U.S. at 7 878–82, or the conferral of wide latitude to government officials to grant or deny 8 exemptions, Fulton, 141 S. Ct. at 1877–78, typically precludes a finding of general 9 applicability and triggers strict scrutiny. These mechanisms confer too much discretion 10 to government actors, impermissibly inviting them “to decide which reasons for not 11 complying with [a] policy are worthy of solicitude.” 12 Conversely, a rule that administers exemptions only to “objectively defined categories of 13 persons” is generally applicable. Id. Kennedy, 142 S. Ct. at 2422 (quoting Fulton, 141 S. Ct. at 1879. 14 First, based on the record before it, the Court finds Plaintiffs are unlikely to show 15 the CCDs’ Mandates “prohibit religious conduct while permitting secular conduct that 16 undermines the government’s asserted interests in a similar way.” Kennedy, 142 S. Ct. at 17 2422 (quoting Fulton, 141 S. Ct. at 1877). The record demonstrates the Mandates do the 18 opposite: 19 objections to vaccination by permitting them to apply for an exemption from the 20 Mandates on that basis. Cf. UnifySCC, 2022 WL 2357068, at *6 (finding generally 21 applicable a workplace COVID-19 vaccine mandate that employed a religious-belief 22 exemption). 23 they explicitly accommodate employees with sincerely-held religious Second, Plaintiffs are unlikely to demonstrate the Mandates employed “a 24 mechanism for individualized exemptions.” Fulton, 141 S. Ct. at 1877–78. Again, 25 UnifySCC is instructive. 26 COVID-19 vaccine mandate were determined based upon employees’ responses to a 27 form questionnaire all applicants needed to fill and submit to obtain an exception. And 28 there, like here, plaintiffs challenging the mandate presented no evidence that defendants There, like here, exemptions to Santa Clara’s workplace - 27 22cv0424 1 looked beyond the face of those forms and exercised their own discretion to make 2 exemption determinations. Nor did they provide evidence showing Santa Clara provided 3 a different standard for administering exemptions to a select group of employees. 4 Accordingly, the Court reaches the same conclusion here as District Judge Freeman did 5 in UnifySCC and concludes the Mandates do not appear to employ an impermissible 6 mechanism for individualized and discretionary exemptions. 2022 WL 2357068, at *8. 7 Plaintiffs argue the mere inclusion of a sincerely-held religious exemption defeats 8 the Mandates’ general applicability. (Mem. at 17:26–18:6.) The Court is unpersuaded. 9 Taking Plaintiffs’ argument to its logical conclusion, rules that provide no religious 10 exemption at all are on stronger footing under the Free Exercise clause than rules that 11 provide exceptions on religious grounds and, thus, treat religious conduct more favorably. 12 This cannot be. 13 provide no religious exemption process in order to avoid strict scrutiny.” UnifySCC, 14 2022 WL 2357068, at *8 (quoting Ferrelli v. Unified Ct. Sys., No. 1:22-cv-0068 15 (LEK/CFH), 2022 WL 673863, at *7 (N.D.N.Y. Mar. 7, 2022)). More importantly, 16 Plaintiffs rely principally on Fulton for the notion inclusion of a religious exemption to 17 an otherwise neutral rule triggers strict scrutiny, but that case provides no such support. 18 Fulton merely held a mechanism for exemptions that confers “sole discretion” to a 19 government official to approve or deny fails the general applicability test. 141 S. Ct. at 20 1878. 21 employed by the rule at issue in Fulton is not remotely similar to the mechanism 22 employed by the CCDs for administering exemptions to their Mandates. 23 24 25 26 27 Were this true, governments would be perversely incentivized “to For the reasons described above, the mechanism for granting exemptions Accordingly, Plaintiffs have not shown they are likely to prevail in proving the Mandates are not generally applicable. ii. Tiers of Review Having found the Mandates appear to be both neutral and generally applicable, the Court easily concludes rational basis review applies. Stormans, 794 F.3d at 1084. 28 - 28 22cv0424 1 “Rational basis review is highly deferential to the government, allowing any 2 conceivable rational basis to suffice.” Erotic Serv. Provider Legal Educ. & Research 3 Project v. Gascon, 880 F.3d 450, 457 (9th Cir.), amended, 881 F.3d 792 (9th Cir. 2018). 4 Rational basis review entails a two-step analysis. First, “[d]oes the challenged [rule] 5 have a legitimate purpose?” W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 6 451 U.S. 648, 668 (1981). Second, “[w]as it reasonable for the [government] to believe 7 that use of the challenged [rule] would promote that purpose.” Id. Under this test, the 8 Mandates are “not subject to courtroom fact-finding and may be based on rational 9 speculation unsupported by evidence or empirical data.” See F.C.C. v. Beach Commc’ns, 10 Inc., 508 U.S. 307, 315 (1993). 11 As alluded to above, see supra Sec. III.A, in the context of challenges to State- 12 issued vaccine mandates that do not abridge any fundamental right, Article III courts 13 must conduct rational basis review with a keen eye towards federalism principles. Cf. 14 Halgren, 577 F. Supp. 3d at 724 (opining one of the “three significant concepts” 15 underscored in Jacobson “that continue to shape the controlling body of law” is 16 “concerns of federalism”). Jacobson requires courts to assume the relevant State body 17 was aware “opposing theories” concerning a vaccine’s efficacy, and was “compelled, of 18 necessity,” to choose to institute a mandate as opposed to alternative mitigation and 19 prevention measures. Jacobson warns courts that it is not their role to insert themselves 20 in these debates, which are reserved for the States pursuant to the Tenth Amendment. 21 Jacobson, 197 U.S. at 30–31 (“[It is] no part of the function of a court . . . to determine 22 which one of the two modes was likely to be the most effective for protection of the 23 public against disease.”). To insert itself in these difficult decisions would effectively 24 contravene core principles of federalism. Halgren, 577 F. Supp. 3d at 724. 25 Plaintiffs acknowledge the CCDs have a legitimate interest in “control[ling] the 26 exposure and minimiz[ing] the spread of COVID-19 in the workplace.” (Compl. ¶ 268.) 27 In Roman Catholic Diocese of Brooklyn, Justice Gorsuch observed “[s]temming the 28 spread of COVID-19 is unquestionably a compelling interest,” not just a legitimate one. - 29 22cv0424 1 141 S. Ct. at 67; Slidewaters LLC v. Wash. State Dep’t of Lab. & Indus., 4 F.4th 747, 758 2 (9th Cir. 2021). The Ninth Circuit similarly has concluded that states have a compelling 3 interest “in reducing community spread of COVID-19, protecting high-risk individuals 4 from infection, and preventing the overwhelming of its healthcare system as a result of 5 increased hospitalizations.” South Bay, 985 F.3d at 1142 (9th Cir. 2021). 6 Like Plaintiffs’ equal protection claim, their free exercise claim rises and falls with 7 the veracity of their assertions about the COVID-19 vaccines efficacy. Plaintiffs argue 8 mass vaccination no longer is a rational means to achieve the State’s legitimate interest in 9 disease prevention because data suggests vaccines are ineffective against the Delta 10 variant—the predominant strain at the time of the pending Motion. But Plaintiffs 11 essentially ask this Court to do what the Supreme Court in Jacobson explicitly cautions 12 against: to examine the veracity of “opposing theories” about vaccine efficacy and 13 invalidate the relevant State body’s decision to authorize compulsory vaccination on that 14 basis. The Court will not do this. “Rational speculation” is enough to support the CCDs’ 15 decision to institute their Mandates. Beach Commc’ns, Inc., 508 U.S. at 315. 16 Here, “rational speculation” supports the notion that mass vaccination against a 17 contagious disease like COVID-19 limits the incidence of infection, hospitalization, and 18 death. In concluding vaccine mandates are a rational method to reduce COVID-19 19 infection and the risk of serious illness, hospitalization, and death related thereto, the 20 Court rests on all fours with its sister courts in the Ninth Circuit and other circuit courts. 21 Williams v. Brown, 567 F. Supp. 3d 1213, 1228 (D. Ore. 2021); see also UnifySCC, 2022 22 WL 2357068, at *8 (collecting cases); see also Legaretta, 2022 WL 1443014, at **8–12 23 (“The requirements set forth in the Vaccine Directive, thus grounded in guidance from 24 local health authorities, are rationally related to Defendants’ legitimate purpose of 25 protecting the community ‘against an epidemic of disease [that] threatens the safety of its 26 members.’” (quoting Jacobson, 197 U.S. at 27) (alteration in original)); Does 1–6 v. 27 Mills, 566 F. Supp. 3d 34, 52 (D. Me. 2021) (finding vaccine mandate survived rational 28 basis review because “unvaccinated individuals substantially more likely both to contract - 30 22cv0424 1 COVID-19 and to suffer serious medical consequences as a result”); see also Norris v. 2 Stanley, 567 F. Supp. 3d 818, 823 (W.D. Mich. 2021) (“Put plainly, even if there is 3 vigorous ongoing discussion about the effectiveness of natural immunity, it is rational for 4 [Michigan State University] to rely on present federal and state guidance in creating its 5 vaccine mandate.” (footnote omitted)). 6 The result would be the same even if this Court were to wade into the factual 7 morass of Plaintiffs’ claim about COVID-19 vaccines. 8 demonstrates COVID-19 vaccines reduce the risk of contracting and spreading the virus, 9 see supra Sec. III.B.1, and, moreover, drastically reduce the incidence of serious illness, 10 hospitalization, and death among those infected with COVID-19. See MMWR (“These 11 results 12 hospitalization.”); id. (“COVID-19 vaccination . . . provides the most robust potential 13 against initial infection, severe illness, hospitalization, long-term sequelae, and death.”); 14 Science Report (“Available evidence suggests the currently approved or authorized 15 COVID-19 vaccines are highly effective against hospitalization and death for a variety of 16 strains, including Alpha (B.1.1.7), Beta (B.1.351), Gamma P.1) and Delta (B.1.617.2).”); 17 id. (“All approved or authorized COVID-19 vaccines demonstrated high efficacy (>89%) 18 against COIVD-19 severe enough to require hospitalization.”). suggest that vaccination protects against Plaintiffs own evidence COVID-19 and related 19 Accordingly, Plaintiffs have failed to show a likelihood of success on the merits of 20 their free exercise claim against the Mandates. The evidence produced shows that it is 21 more likely than not the mandates are neutral and generally applicable and survive 22 rational basis review. 23 b. 24 25 26 27 28 Accommodation Frameworks Having concluded the CCDs’ Vaccine Requirements’ Mandates pass constitutional muster, the Court now separately considers their Accommodation Frameworks. i. Fulton Analysis Neutrality: The Court once again considers the facial and operational neutrality, this time as to the Accommodation Frameworks. - 31 22cv0424 1 The Accommodation Frameworks appear entirely neutral. The objective criteria 2 for considering accommodation determinations listed in SDCCD and GCCCD’s 3 Frameworks do not include religion. Hence, the SDCCD and GCCCD Accommodation 4 Frameworks likely are facially neutral. So, too, is the SOCCCD Framework. While it 5 does not list what criteria are considered, it is still neutral on its face because it does not 6 “refer[] to a religious practice without secular meaning discernible from the language or 7 context.” Stormans, 794 F.3d at 1076. Plaintiffs do not contend—nor do they offer any 8 evidence indicating—that the religion of an employee (or the fact that an employee has a 9 religious exemption) influences the CCDs’ accommodations decisions. For example, 10 Plaintiffs do not allege employees who obtained medical-condition exemptions were 11 treated favorably, e.g., did not have to submit to weekly COVID-19 testing, as compared 12 to employees who obtained an exemption on religious grounds. Thus, the Court has no 13 basis to find Plaintiffs are likely to succeed in showing the Accommodation Frameworks 14 operate as “religious gerrymander[s]” that “target religious practices through careful 15 legislative drafting.” 16 Accommodation Frameworks are likely operationally neutral. 17 See Id. (quoting Lukumi, 508 U.S. at 535–37). Hence, the General Applicability: The Court has no difficulty discerning the SDCCD and 18 GCCCD Accommodation Frameworks appear generally applicable. Under these 19 Frameworks, SDCCD and GCCCD determine exempt employees’ accommodations 20 based on their position and the environment in which they perform their duties. There is 21 no evidence the nature of the exemption—i.e., religious or medical—influences the type 22 of accommodation granted, nor is there evidence that certain individuals are excused 23 from the Accommodation Framework that otherwise applies to all exempt employees. 24 Thus, Plaintiffs fail to raise even a serious question these Frameworks “prohibit religious 25 conduct while permitting secular conduct that undermines the government’s assessed 26 interests in a similar way” or employ “a mechanism for individualized exemptions.” 27 Fulton, 141 S. Ct. at 1877. 28 - 32 22cv0424 1 Although Plaintiffs do not argue as much, SOCCCD’s Accommodation 2 Framework poses a more difficult question. On the one hand, the SOCCCD Vaccine 3 Policy provides SOCCCD employees “who obtain an exemption may be subject to other 4 safety measures beyond what is required for vaccinated individuals,” including but not 5 limited to “physical/social distancing, avoiding large gatherings, wearing acceptable 6 facial coverings and/or other personal protective equipment; frequent handwashing and 7 cleaning, practicing respiratory etiquette, and/or exclusion from the physical worksite 8 when warranted.” (SOCCCD Vaccine Requirement § II.3.) Yet it does not describe how 9 SOCCCD administers these additional safety measures and restrictions. Nor does the 10 Vyskocil Declaration state what factors are relevant. In that sense, SOCCCD’s 11 Accommodation Framework is a black box; it clouds this Court’s insight into whether 12 SOCCCD administers accommodations based on objective criteria. 13 potential general applicability issue because it does not foreclose the possibility 14 SOCCCD’s Framework treats medical-condition exemptees better than religious ones, or 15 that there exists within the SOCCCD Framework a “mechanism for individualized 16 exemptions.” Fulton, 141 S. Ct. at 1878. This raises a 17 On the other hand, at this stage of proceedings it is Plaintiffs’ burden to establish— 18 at a minimum—there exist serious questions going to the merits of its clam. Plaintiffs do 19 not contest, nor have they presented evidence showing, SOCCCD’s Accommodation 20 Framework operates in a manner that “prohibits religious conduct while permitting 21 secular conduct that undermines the government’s interests in a similar way” or that 22 SOCCCD officials exercise their own discretion in selecting the additional protective 23 measures with which religious exemptees must comply. Kennedy, 142 S. Ct. at 2422. 24 Simply put, Plaintiffs do not provide sufficient evidence to raise serious questions about 25 the SOCCCD Accommodation Frameworks’ general applicability. 17 26 27 28 17 SOCCCD represented at the hearing that its Framework operates to accommodate its exempt employees by permitting them to continue to work onsite, subject to testing and/or masking - 33 22cv0424 1 ii. Tiers of Scrutiny 2 Because it is more likely than not the Accommodation Frameworks are neutral and 3 generally applicable, they would be subject to rational basis review. Fulton, 141 S. Ct. at 4 1876. Like the Mandates, the Court finds the Accommodation Frameworks appear 5 “rationally related to a legitimate”—if not compelling—governmental purpose, Stormans, 6 794 F.3d at 1084: “[s]temming the spread of COVID-19,” Roman Catholic Diocese, 141 7 S. Ct. at 67. 8 primary cause of continued spread” of COVID-19. Hence, requiring unvaccinated CCD 9 employees to submit to additional protective measures that reduce the incidence of 10 infection, like testing and masking, is more likely to be found to be “rationally related” to 11 the interest in preventing the virus’ spread. Cf. Forbes v. Cty. of San Diego, No. 20-cv- 12 00998-BAS-JLB, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021) (“At minimum, 13 ‘rational speculation’ could support the use of masks to reinforce physical distancing and 14 limit the spread of infected droplets during a pandemic.” (citing Beach Commc’ns, 508 15 U.S. at 315)). Plaintiffs’ own evidence suggests that “unvaccinated persons are the 16 Plaintiffs fail to raise serious questions about the neutrality and general 17 applicability of the Accommodation Frameworks, or that those Frameworks fail rational 18 basis review. Accordingly, Plaintiffs do not satisfy the first Winter factor as it relates to 19 their free exercise claim. 20 3. Title VII 21 “Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment 22 on the basis of race, color, religion, sex or national origin . . . [and] prohibits retaliation 23 against persons who assert rights under the statute.” Fort Bend Cty. v. Davis, 139 S. Ct. 24 1843, 1846 (2019); see 42 U.S.C § 2000e. In Lawson v. Washington, 296 F.3d 800, 804 25 (9th Cir. 2002), the Ninth Circuit instructs trial courts to analyze Title VII religious 26 27 28 requirements, which are now defunct. This is consistent with the evidence before the Court: both Perez and Bonkowski were granted as accommodations to their religious exemptions the ability to continue working on campus, subject to a twice-weekly testing requirement. (Vyskocil Decl. ¶¶ 14–15.) - 34 22cv0424 1 accommodation claims under a two-part framework. At the first step, the plaintiff must 2 show: (1) they had a “bona fide religious belief,” the practice of which conflicted with a 3 duty of employment; (2) they informed their employer of that belief and conflict; and (3) 4 the employer threatened the[m] with or subjected [them] to discriminatory treatment 5 because of plaintiff’s inability to fulfill job requirements.” Id. (emphasis added). At the 6 second step, the burden shifts to the employer to “prove that [it] made good faith efforts 7 to accommodate [the plaintiff’s] religious beliefs, and, if those efforts were unsuccessful, 8 to demonstrate that [it was] unable reasonably to accommodate [the plaintiff’s] beliefs 9 without undue hardship.” EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 (9th 10 Cir. 1988). 11 Plaintiffs Title VII claim is directed at the Mandates specifically, not the 12 accommodations ultimately administered to Plaintiffs. They allege “CCDs have shown a 13 pattern and practice of not recognizing an employee or student’s religious belief against 14 mandatory vaccination” in violation of 42 U.S.C. 2000(e). (Compl. ¶ 300.) But it is 15 well-settled that to establish a Title VII claim based on discriminatory treatment, a 16 plaintiff must identify some adverse employment action—threatened or actual. This 17 Plaintiffs cannot do because all have received religious exemptions to the Mandates. See 18 Burcham v. City of Los Angeles, 562 F. Supp. 3d 694, 708 (N.D. Cal. 2022) (“Without 19 allegations that Defendants have not, or are not likely to, deny Plaintiffs’ requests for 20 accommodation, Plaintiffs do not plausibly allege that Defendants have discriminated, or 21 threatened to discriminate, against them.”); accord Beckerich v. St. Elizabeth Med. Ctr., 22 563 F. Supp. 3d 633, 642–43 (E.D. Ky. 2021) (opining that by obtaining a religious 23 exemption to a vaccine mandate, plaintiffs were precluded from satisfying the third 24 element of Title VII challenge to said vaccine mandate). 18 25 26 27 28 18 The parties dispute as a threshold matter whether Plaintiffs have adequately exhausted their administrative remedies by filing charges with the Department of Fair Employment and Housing or Equal Employment Opportunity Commission, which also is a requirement for a Title VII claim. O’Hailpin v. Hawaiian Airlines, Inc., 583 F. Supp. 3d 1294, 1307–08 (D. Haw. 2022) (citing Alexander - 35 22cv0424 1 2 Accordingly, Plaintiffs fail to raise even serious questions going to the merits of their Title VII claim. * 3 * * * 4 Having concluded that Plaintiffs entirely fail to establish the first Winter factor, 5 this Court need not analyze the remaining factors in order to conclude Plaintiffs’ request 6 for a preliminary injunction is doomed. Cottrell, 632 F.3d at 1132. Nevertheless, in the 7 interest of completeness, the Court considers Plaintiffs’ purported irreparable harm and 8 the public interest served by a preliminary injunction below. 9 C. Irreparable Harm 10 The second Winter factor requires Plaintiffs to establish they are likely to suffer 11 irreparable harm absent a preliminary injunction. Sierra Forest Legacy, 577 F.3d at 1021 12 (holding a plaintiff must show it is “likely to suffer irreparable harm in the absence of 13 [preliminary] relief” to prevail on the Winter test); see also Herb Reed Enters., LLC v. 14 Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1251 (9th Cir. 2013) (concluding irreparable 15 harm is indispensable under both the Winter test and sliding-scale analysis). 16 “Irreparable harm” encapsulates two separate components. First, the injury upon 17 which preliminary relief is predicated must not be speculative or too contingent upon 18 events that may or may not occur. Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 19 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable injury 20 sufficient to warrant granting a preliminary injunction.”); Sywula v. DaCosta, No. 21-cv- 21 0145-BAS-AGS, 2021 WL 5280616, at *3 (S.D. Cal. Oct. 13, 2021) (explaining a 22 plaintiff must provide a factual foundation for court to infer defendant will take some step 23 in the future to inflict irreparable injury); accord Varsames v. Palazzolo, 96 F. Supp. 2d 24 361, 365 (S.D.N.Y. 2000) (denying preliminary injunction where the harms alleged were 25 26 27 28 v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)). Defendants aver this deficiency dooms Plaintiffs’ Title VII claim, and Plaintiffs contend they need not have exhausted their administrative remedies to show a likelihood of success on the ultimate merits of their Title VII claim. The Court need not reach this dispute because Plaintiffs’ Title VII claim is so fundamentally deficient on the merits. - 36 22cv0424 1 “both contingent upon a series of other events which may or may not occur and is not 2 without possibility of redress”). That is, a plaintiff must demonstrate an immediacy to 3 the harm alleged to befall him or her: the harm must be “likely” to inure, and not merely 4 speculative. Winter, 555 U.S. at 21–22. 5 Second, the imminent injury must qualify as “irreparable.” “Irreparable harm is 6 traditionally defined as a harm for which there is no adequate legal remedy, such as an 7 award of damages.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 8 2004) (citing Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 9 597, 603 (9th Cir. 1991)). Generally speaking, “economic damages are not traditionally 10 considered irreparable because the injury can later be remedied by a damage award.” 11 Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009) (emphasis in 12 original) (collecting Ninth Circuit and Supreme Court decisional law reflecting the 13 proscription against injunctive relief to rectify economic injuries alone), vacated and 14 remanded on other grounds by Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 15 606 (2012); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 471 (9th Cir. 16 1984) (“Mere financial injury . . . will not constitute irreparable harm if adequate 17 compensatory relief will be available in the course of litigation.”). 18 Here, Plaintiffs’ moving papers do not identify explicitly the irreparable harms 19 they will suffer absent preliminary relief. Rather they identify two general categories of 20 irreparable harm that purportedly will inure if the CCDs’ Vaccine Requirements are not 21 enjoined: (1) constitutional injury and (2) financial injury. (Mot. at 1:21-23 (“CCD[s] 22 will irreversibly place Plaintiffs at risk of imminent financial duress.”); Mem. at 21:6-19 23 (arguing that constitutional violations constitute irreparable harm and asserting “[t]he 24 unequal treatment of unvaccinated [e]mployees and [s]tudents compared to vaccinated 25 [e]mployees and [s]tudents is irreparable harm”).) 26 1. Constitutional Injury 27 “It is well established that the deprivation of constitutional rights ‘unquestionably 28 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) - 37 22cv0424 1 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)); Nelson v. NASA, 2 530 F.3d 865, 882 (9th Cir. 2008) (“[C]onstitutional violations cannot be adequately 3 remedied through damages and therefore generally constitute irreparable harm.”), rev’d 4 on other grounds NASA v. Nelson, 562 U.S. 134 (2011). “This is especially true when 5 the constitutional violations complained of are actively ongoing through the enforcement 6 of an unconstitutional law.” Menges v. Knudsen, 538 F.3d 1082, 1120 (D. Mont. 2021) 7 (citation omitted). However, “in cases involving a claim by a movant for interference 8 with protected freedoms or other constitutional rights, the finding of irreparable injury 9 cannot meaningfully be rested on a mere contention of a litigant, but depends on an 10 appraisal of the validity, or at least the probable validity, of the legal premise underlying 11 the claim of right in jeopardy of impairment.” Del. & H. Ry. Co. v. United Transp. 12 Union, 450 F.2d 603, 619–20 (D.C.C. 1971) (citing Green v. Kennedy, 309 F. Supp. 13 1127, 1138–39 (D.D.C. 1970)). 14 Having determined Plaintiffs failed even to raise serious questions going to the 15 heart of the constitutional claims upon which the present Motion is predicated— 16 Plaintiffs’ equal protection and free exercise claims—the Court concludes Plaintiffs 17 necessarily have failed show irreparable injuries of a constitutional dimension warranting 18 pre-trial relief. 19 2. Financial Injury 20 As an antecedent, independent, and separate theory of irreparable injury, Plaintiffs 21 appear to aver they will suffer financial harms absent preliminary relief. The Court 22 discerns two principal financial injuries from Plaintiffs’ briefing. First, Plaintiffs Lama, 23 Meza, Perez, and Sparks allege they are “concerned” they will be terminated from their 24 employment “in the future” if the CCDs revoke their religious exemptions or if they fail 25 to abide by the testing and masking requirements of their accommodations. (See Compl. 26 ¶¶ 88 (Sparks), 95 (Lama), 107–08 (Meza), 123 (Perez), 134 (Bonkowski).) 27 This injury is far too speculative and contingent: the record is devoid of any 28 factual foundation from which this Court could infer Defendants will revoke Plaintiffs’ - 38 22cv0424 1 religious exemptions or discipline Plaintiffs for noncompliance with testing and masking 2 requirements. In fact, the evidence in the record reflecting Defendants’ conduct since 3 this lawsuit commenced supports an equal—if not stronger—inference the threat of 4 termination is far from imminent.19 See Solar Integrated Roofing Corp. v. Ballew, No. 5 22-cv-0028-BAS-JLB, 2022 WL 902602, at *8 (S.D. Cal. Mar. 28, 2022) (identifying 6 defendant’s “past behavior” as relevant consideration in assessing likelihood of 7 irreparable harm (citing Prizant v. Abbott, No. 3:20-cv-01604-H-LL, 2020 WL 6204629, 8 at *6 (S.D. Cal. Sept. 9, 2020)). Since Plaintiffs commenced this action in March 2022, 9 the CCDs have not revoked a single religious exemption. Moreover, Vice Chancellors 10 Smith, Vyskocil, and Gallagher all attest that those exemptions will remain in place for 11 the 2022-23 school year. (Smith Decl. ¶¶ 4(a), 8; Vyskocil Decl. ¶¶ 14–15; Gallagher 12 Decl. ¶ 10.) Nor have Plaintiffs demonstrated propensity for failing to comply with 13 testing and masking requirements built into their accommodations. Indeed, the record 14 demonstrates Meza, Perez, Bonkowski, and Sparks—the Plaintiffs who must either wear 15 face masks or submit to asymptomatic testing due to their unvaccinated status—have 16 accepted and uniformly complied with their accommodations. For that reason, they 17 remain in good standing with their respective institutions. (See, e.g., Smith Decl. ¶ 8; 18 Vyskocil Decl. ¶¶ 14–15; Gallagher Decl. ¶ 10.) 19 demonstrate any sense of immediacy to their purported financial injuries. Accordingly, Plaintiffs fail to 20 Even assuming arguendo Plaintiffs establish an immediate threat of termination, 21 the Supreme Court instructs that only in “genuinely extraordinary situation[s]” do loss of 22 employment and its attendant consequences qualify as irreparable harm. Sampson v. 23 Murray, 415 U.S. 61, 92 n.68 (1974). Those injuries are principally pecuniary in nature. 24 Hence “adequate compensatory or other corrective relief will be available at a later date, 25 in the ordinary course of litigation.” Id. Nothing about the circumstances in which 26 27 28 19 As mentioned at supra note 5, SDCCD mentioned at oral argument Lama and Meza could face termination in the Spring 2023 for failure to get vaccinated. Still, this injury is too speculative to warrant pre-trial relief. Varsames, 96 F. Supp. 2d at 365. - 39 22cv0424 1 Plaintiffs find themselves—having to choose between continued employment or taking a 2 vaccine they do not want—renders the instant case a “genuinely extraordinary” one 3 warranting imposition of preliminary injunctive relief to rectify the threat of discharge. 4 There remain the adequate legal remedies of reinstatement and backpay, should Plaintiffs 5 ultimately succeed on their claims during the ordinary course of litigation. Navy SEAL 1 6 v. Austin, --- F. Supp. 3d ---, 2022 WL 1294486, at *4 (D.D.C. Apr. 29, 2022) (holding 7 separation from military for failure to comply with COVID-19 vaccine mandate “would 8 likely not be irreparable harm because Plaintiff would be entitled to reinstatement and 9 backpay should he ultimately succeed on the merits”). 10 In so concluding, this Court’s analysis is in accordance with its sister tribunals, 11 which have concluded with near uniformity that the pressure of having to comply with a 12 COVID-19 vaccine mandate as a condition of employment does not invoke an exception 13 to the general proscription against issuing preliminary relief when the discharge of 14 probationary employees is at issue. O’Hailpin, 583 F. Supp. 3d at 1302–03 (collecting 15 cases); see also Keene v. City & Cty. of San Francisco, No. 22-cv-01587-JSW, 2022 WL 16 4454362, at *4 (N.D. Cal. Sept. 23, 2022); SNL Workforce Freedom All. v. Nat’l Tech. & 17 Eng’g Solutions of Sandia, LLC, No. 1:22-cv-00001-KWR-SCY, 2022 WL 2065062, at 18 *3 (D.N.M. June 8, 2022); Roth v. Austin, 8:22-cv-3038, 2022 WL 1568830, at *29 (D. 19 Neb. May 18, 2022); accord Halczenko v. Ascension Health, Inc., 37 F.4th 1321, 1325 20 (7th Cir. 2022) (“The ‘CMS vaccine mandate,’ [plaintiff] advances, ‘puts legal and 21 economic pressure on healthcare providers to only hire vaccinated individuals.’ Perhaps. 22 But career jeopardy alone does not amount to irreparable harm.”). 23 Second, Plaintiffs George and Sparks allege GCCCD forced them to accrue 24 unwanted paid leave, resulting in a loss of benefits. (See George Statement, Ex. 1 to 25 George Decl.; Sparks Statement, Ex. 1 to Sparks Decl.) Because this injury is purely 26 economic, it is per se not irreparable. Short v. Berger, --- F. Supp. 3d ---, 2022 WL 27 1203876, at *7 & n.7 (D. Ariz. Apr. 22, 2022) (holding “tangible employment-related 28 harms,” including the loss of benefits, “do not qualify as irreparable under Ninth Circuit - 40 22cv0424 1 law because they can be remedied through retrospective relief.” (citing Hartikka v. 2 United States, 754 F.2d 1516, 1517 (9th Cir. 1985))); accord Murray v. District of 3 Columbia, No. 06-02013 (HHK), 2011 WL 13377078, at *2 (D.D.C. Feb. 14, 2011) 4 (“[Plaintiff]’s allegations regarding paid leave and loss of pay, standing alone, are, by 5 definition, not irreparable harm.” (citing Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 6 (D.C. Cir. 1985))). 7 D. 8 When the State is the opposing party, the final two Winter factors merge. Nken v. 9 Holder, 556 U.S. 418, 435 (2009). Because Plaintiffs have not established a likelihood of 10 success on the merits of their free exercise and equal protection claims, there is no public 11 interest related to the prevention of continuing constitutional injuries. Cf. Melendres, 695 12 F.3d at 1002 (“[T]he deprivation of constitutional rights unquestionably constitutes 13 irreparable injury . . . .”). Moreover, the Court finds the public would not be well-served 14 by hampering the CCDs from implementing COVID-19 mitigation measures, which 15 Plaintiffs’ own evidence suggests not only are endorsed by the CDC but are proven to 16 have a material degree of effectiveness against viral outbreak. Balance of the Equities and Public Interest Accordingly, the Court cannot find granting Plaintiffs’ request would be in the 17 18 public interest. 19 IV. 20 21 CONCLUSION For the foregoing reasons, the Court DENIES in its entirety Plaintiffs’ request for a preliminary injunction enjoining the CCDs’ Vaccine Requirements. (ECF No. 40.) 22 IT IS SO ORDERED. 23 DATED: November 3, 2022 24 25 26 27 28 - 41 22cv0424
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