This newsletter is distributed by Public Health Law Watch as part of Act for Public Health, a working group of the Public Health Law Partnership that is convening to provide law and policy research, analysis, and expertise in support of public health authority.
This week's case updates:
Friday, 9/23: A New York judge ruled that New York City’s COVID-19 vaccine mandate is invalid as it applies to members of the Police Benevolent Association. The city appealed.
Monday, 9/26: A group of 23 former Seattle firefighters are suing the city and fire chief for religious discrimination and wage theft after each plaintiff filed for a religious exemption to the COVID-19 vaccine mandate, and none received accommodations.
Thursday, 9/29: The 10th Circuit heard arguments on whether Colorado University medical school’s COVID-19 vaccine mandate burdens the free exercise of religion.
Spotlight: The current status of federal vaccine mandate litigation, part 2
Last week’s update summarized the litigation surrounding three federal COVID-19 vaccine mandates: the contractor mandate, the federal employee mandate, and the Head Start program mandate. This week, we cover two additional federal vaccine mandates: the military mandates and the CMS mandate.
Military Mandates
Several district courts have granted injunctive relief in favor of service members pursuing RFRA and First Amendment challenges to military vaccine requirements.
In February 2022, the Fifth Circuit upheld one such injunction in U.S. Navy Seals 1-26 v. Biden. In March 2022, the Supreme Court narrowed the injunction, authorizing the military to reassign but not fire unvaccinated service members as the litigation continues.
In Doster v. Kendall, a district court in Ohio blocked the U.S. Air Force from enforcing its COVID-19 vaccine mandate based on plaintiffs’ RFRA and First Amendment claims. On appeal, the Sixth Circuit denied the Air Force’s emergency motion to stay the class certification, but expedited the consideration of the appeal. The order granting class status and preventing enforcement of the mandate remains in effect.
In Colonel Financial Management Officer v. Austin, a district court in Florida granted a class-wide preliminary injunction against the COVID-19 vaccine mandate for all U.S. Marines on the basis of RFRA. A bench trial has been scheduled for January 23, 2023 to consider a request for a permanent injunction.
Other challenges to military vaccine mandate have not been as successful. A California district court found Dunn, a service member, was unlikely to succeed on the merits of his RFRA and First Amendment claims, finding less restrictive means “not viable options.” Prelim. Inj. Hrg. & Order, Dunn v. Austin, 2:22-cv-288, ECF No. 22 (E.D. Cal. Feb. 2, 2022). The Ninth Circuit (seeDunn v. Austin, No. 22-15286, 2022 WL 1136043, at *1 (9th Cir. Apr. 1, 2022)) and the Supreme Court both denied Dunn’s request for an injunction pending appeal.
Additional cases in which courts denied plaintiffs' motions for preliminary injunctions include Roth v. Austin, appeal filed, No. 22-2058 (8th Cir. May 20, 2022); Knick v. Austin, Creaghan v. Austin, appeal filed No. 22-5135 (D.C. Cir. May 20, 2022); and Navy Seal 1 v. Austin.
CMS Mandate
Despite being upheld by the Supreme Court in January 2022, challenges to the CMS vaccine mandate continued. In February 2022, the attorneys general of 16 states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Mississippi, Ohio, Oklahoma, South Carolina, Tennessee, Utah, Virginia and West Virginia)sought to amend their complaint, stating that the blanket rule issued by CMS does not account for changing and developing circumstances, and that given the new, more vaccine-resistant, Omicron variant, “the situation has changed.” This amended suit was filed in the Louisiana district court that issued the initial preliminary injunction against CMS’s interim final rule. Ultimately, the motion was denied by the Fifth Circuit.
