CMS Announcement Revising Requirements of Health Care Workers
Announcement by CMS
Dec. 28, 2021CMS
On December 28, 2021, CMS announced that it will be enforcing the CMS mandate in the states where the mandate has not been enjoined. It also changed the compliance dates, requiring health care workers to receive their first dose by January 27, 2022 and their full dose or an exemption by February 28, 2022.
The application of the CMS mandate is currently split, with 25 states in which it is enjoined and 25 states in which it is not.
Supreme Court Will Hear Oral Arguments January 7, 2022
Announcement by the Supreme Court Regarding the OSHA and CMS Mandates
Dec. 22, 2021U.S. Supreme Court
On December 22, 2021, the U.S. Supreme Court announced that it will hold oral arguments on emergency applications regarding the CMS and OSHA mandates: One, the application to stay the CMS mandate in 25 states, and two, the emergency applications to re-stay the OSHA mandates.
The government's case is that it has a broad mandate to protect Medicare and Medicaid beneficiaries health and thus can condition payments to health care facilities on a vaccination requirement.
The States challenging the mandate argue that it's not within the power of the agency, but rather it is for Congress to clearly and expressly authorize the agency if it wants to allow the agency to mandate such a sweeping vaccination requirement. States note that CMS did not consider evidence and alternatives nor did they consider the use of testing as an alternative measure.
Update: Case Against the Administration and OSHA Rule Implementing Biden’s Vaccine Mandate for Businesses with Over 100 Employees
In Re MCP No. 165, OSHA Rule on Covid-19 Vaccine and Testing, 86 Fed Reg 61402, 21-7000, 12-3-2021, CA6
Dec. 17, 2021
On 12/17/2021, a Sixth Circuit 3 judge panel, in a split 2-1 decision, dissolved the nationwide OSHA mandate issued by the Fifth Circuit in a 3-0 vote in November 2021. The majority found that OSHA did not exceed its statutory authority given to it by Congress.
The 2 judge majority also found no irreparable harm to the plaintiffs, calling the numerous concrete harms enumerated by the plaintiff businesses and States to be "entirely speculative." The panel also found that the ETS mandate was “an important step in curtailing the transmission of a deadly virus,” ignoring all evidence that the ‘vaccine’ does not prevent transmission. The dissenting Sixth Circuit judge found that the plaintiffs had shown both a likelihood of success on the merits, as well as the existence of irreparable harm.
Some of the cases included in the Sixth Circuit consolidation to In Re MCP are:
State of Missouri, et al., v Biden, et al., 4:21-cv-01300
Nov. 5, 2021
State of Florida, et al., v. OSHA, No. 21-13866
Nov. 8, 2021
The S. Baptist Theological Seminary v. OSHA, No. 21-4033
Nov. 17, 2021
Bentkey Servs., LLC d/b/a The Daily Wire v. OSHA, No. 21-4027
Nov. 17, 2021
Phillips Mfg. & Tower Co. v. U.S. Dep’t of Labor, No. 21-4028
Nov. 17, 2021
State of Texas, et al., v. U.S. Dep’t of Labor (No Number on Petition)
Nov. 5, 2021
A Suit Filed on Behalf of the State of Oklahoma and Air National Guard Members Challenging the Constitutionality of EO 14042, the Vaccine Mandate Against Federal Contractors
State of Oklahoma v. Biden, et al., 5:21-cv-01136
Dec. 02, 2021U.S. District Court, Oklahoma Western District
On December 2, 2021, the State of Oklahoma filed a lawsuit against President Biden’s Executive Order 14042 (“EO 14042”), the mandate that requires all federal contractors and subcontractors to receive the COVID-19 vaccinations.
The lawsuit, filed by the State of Oklahoma (“State”), Governor J. Kevin Stitt, Attorney General John M. O’Connor, and 16 Air National Guard Members, asserts that EO 14042 does each of the following:
1) exceeds the President’s authority (utilizing the non-delegation principle);
2) is not authorized by any Congressionally enacted statute;
3) violates the Tenth Amendment;
4) violates several Congressional laws, including the Religious Freedom Restoration Act (“RFRA”), the Administrative Procedures Act (“APA”), and the Procurement Policy Act (“PPA”);
5) exceeds Presidential powers in that it is contrary to privacy rights, bodily integrity, individual autonomy, religious conscience, and dignity of the employees and covered contractors (under the First Amendment’s Free Exercise Clause, the Fourth Amendment, and the Fifth Amendment’s Due Process Clause); and
6) fails under the President’s obligation to faithfully enforce laws (under the Separation of Powers and Take Care Clause).
Also, because the field of public health - including vaccines - is within the purview of the State’s governance, the federal EO 14042 is violative of the State’s sovereignty. The State therefore calls the EO 14042 mandate “patently unfair, clearly devoid of common sense, and manifestly unlawful,” as well as “dangerously Un-American.”
Regarding the APA, the lawsuit challenges that EO 14042 fails due to the lack of a nexus between the mandate and a delegation of the requisite legislative authority granted by Congress under the APA. Further, the APA lacks any language that would give the executive (the President) the power to impose a vaccine mandate.
Plaintiffs also assert that EO 14042 violates the PPA because it was not published in the Federal Register for public comment. Because of the sweeping national nature of EO 14042, it qualifies as both a procurement policy and procedure under 41 U.S. Code § 1707(a) and, as such, must be published and a 60-day public comment period allowed.
The suit seeks declaratory and injunctive relief.
The State of Texas Challenges the HHS's CMS COVID-19 Vaccine Mandate
State of Texas v. Becerra, et al., 2:21-cv-00229-Z
Nov. 15, 2021U.S. District Court, Northern District of Texas
On November 15, 2021, the State of Texas sued the federal government, challenging the CMS Interim Final Rule (the CMS mandate). The CMS COVID-19 vaccine mandate applies to all health care workers employed at health care facilities that receive Medicare and Medicaid funding.
The suit asserts that the CMS mandate threatens the health of all Texans, citing devastating effects that mandatory vaccination will have on rural Texas communities, adding to the already existing health care workforce shortages. The State alleges that even the loss of a few staff members due to resignations or terminations would be catastrophic and result in the loss of many health care services. 4.9 million Texans who receive services from the fifteen categories of Medicare and Medicaid-certified health care providers and suppliers covered by the CMS mandate will be affected.
The State claims the CMS mandate is violative of the Tenth Amendment and Art. I, Section 1 of the U.S. Constitution (the non-delegation doctrine), in that the legislature did not delegate the authority to HHS or CMS to establish vaccine requirements.
The suit further asserts violations of the Administrative Procedures Act (APA) due to the lack of a notice and comment period prior to the implementation of a major rule. CMS’s claim of urgency to promulgate the rule is undermined both by hard data showing a downward trend to COVID deaths and hospital admissions and by the fact that CMS waited 11 months after vaccine availability to announce the rule. The State also asserts that CMS’s failure to provide notice and comment violates the Social Security Act’s (42 U.S.C. 1395hh) procedural rule-making requirements.
Additionally, 42 U.S.C. 1395z requires that the HHS Secretary “consult with appropriate State agencies and recognized national listing or accrediting bodies” when “carrying out his functions, relating to determination of conditions of participation by providers of services…”. Since CMS did not consult with any state agencies prior to issuing the CMS mandate, it’s promulgation of the mandate is not lawful.
Texas alleges, further, that under 42 U.S.C. 1302(b)(1) CMS is required to prepare a regulatory impact analysis and it failed to do so. Since the CMS mandate will have significant effects on smaller rural hospitals and facilities, CMS must study its impacts.
The Complaint also alleges that CMS’s actions in promulgating the rule are not reasoned decision-making and are arbitrary and capricious, since it failed to fully consider the economic impacts on the healthcare industry, where labor force issues are concerned, and the financial impacts to healthcare workers who will lose their jobs. The actions do not provide for testing in lieu of the vaccines; refuse to provide exemptions for COVID recovered employees with natural immunity; disregard the costs of the Mandate to States and their agencies; reject the disparate impacts that the CMS mandate will have on minority and economically-disadvantaged communities, and; ignore important healthcare data.
The claims in the suit include Violations of Statutory Limits on Agency Power, in that CMS, subject to the Administrative Procedures Act (APA), is not authorized by Congress to regulate the transmission of communicable diseases or mandate medical treatment for the staff of healthcare facilities. As such, CMS’s actions in exercising broad and boundless authority renders the Constitutional separation-of-powers principles meaningless.
The State of Texas, in its suit, asserts that the CMS mandate violates 42 U.S.C. 1395 because it purports to authorize federal CMS officials to supervise and control the selection and tenure of health care workers by prohibiting covered healthcare facilities from hiring unvaccinated employees and forcing the termination of those employees who are unwilling to submit to the vaccines.
Further, Texas claims the CMS mandate is an unconstitutional exercise of the spending power and a violation of the Anti-Commandeering doctrine. The federal government cannot use the spending power to “commandeer a State’s…administrative apparatus for federal purposes,” or compel the States to implement federal regulatory programs which the State claims the CMS mandate does.
The suit seeks declaratory and injunctive relief.
UPDATE: On December 16, 2021, U.S. District Court Judge Matthew Kacsmark enjoined the federal government from implementing and enforcing the CMS mandate pending a trial or other order from his court.
Case Filed on Behalf of Federal Employees Against the Biden Administration and the Safer Federal Workforce Task Force Alleging Violations of the Federal Code of Regulations and Unconstitutionality of the Executive Order No.
Health Freedom Defense Fund, et al. v. Joseph R. Biden, Jr., et al., 21-cv-02679
Nov. 12, 2021Middle District of Florida
On November 12, 2021, several Department of Defense employees filed suit against Biden’s September 9, 2021 Executive Order No. 14043. The Plaintiffs include distinguished employees, such as a purple-heart service member and a Department of Justice Intelligence Research Specialist, along with Air Force personnel and an Air Traffic employee.
The Plaintiffs assert that they have a right to personal bodily integrity, a right which the government cannot intrude upon by mandate. The Complaint alleges, “At issue is American virtue. It comes to the court through the lens of the right to self-determination and bodily autonomy encompassed within the right to privacy.” The suit was filed asserting violations of the U.S. Constitution’s 14th Amendment Substantive Due Process Clause and the Equal Protection Clause. The suit argues that the case should be evaluated in terms of strict scrutiny: that the “medical treatments are a substantial burden” and that the Defendants cannot meet their burden to show that “the Mandate is narrowly tailored to meet a compelling interest.”
Plaintiffs additionally raise claims that their rights are being violated under parts 293.105 and 293.504 of Title 5 of the Code of Federal Regulations. The case was brought by Health Freedom Defense Fund, along with Federal Employees for Freedom, on behalf of over 6000 federal employees.
Plaintiffs seek declaratory and injunctive relief.
Case Against the Biden Administration, DOD, and Department of the Navy Alleging Discriminatory Treatment and Retaliation for Legally Exercising Rights Under Free Exercise Clause
U.S. Navy Seals 1-26, et al. v. Joseph R. Biden, Jr., et al., 21-cv-01236-P
Nov. 09, 2021U.S. District Court, Northern District of Texas
On November 9, 2021, Navy Seals and other Navy personnel filed a federal suit against the Biden Administration, the DOD, and the Secretary of the Navy asserting that they have refused to grant religious exemptions to the COVID-19 vaccine mandate in violation of federal law and statutes.
The suit was filed under the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), the Administrative Procedure Act (APA), Department of Defense regulations, Department of the Navy regulations, The suit asserts the denial of Plaintiffs’ fundamental right to the free exercise of religion and seeks protection from improper agency action.
Plaintiffs attack the Defendants’ administration of the Navy Vaccine Mandate for refusal to grant religious and medical exemptions, and for retaliatory actions because of exemption requests. The DOD and Navy regulations recognize religious and medical accommodations for immunizations under RFRA and the Free Exercise Clause of the First Amendment, however, Defendants’ actions are not recognizing this, the suit asserts. Plaintiffs additionally raise claims that their rights are being violated under the APA, and that the actions of the military agencies are not the least restrictive means of accomplishing their purported interests.
Plaintiffs seek declaratory and injunctive relief, as well as actual and nominal damages.
Initial Case Against the Administration and OSHA Rule Implementing Biden’s Vaccine Mandate for Businesses with Over 100 Employees
21-6084 November 5, 2021 Fifth Circuit Court of Appeals
Nov. 05, 2021
On November 5, 2021, Petitioners, including numerous corporations and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah filed an Emergency Motion to Stay Enforcement of the OSHA vaccine mandate pending expedited review, pursuant to FRAP 18(a)(2)(A)(i).
FRAP 18(a)(2)(A)(i) allows for the filing of emergency motions to stay agency actions directly in the federal courts of appeal, instead of first filing with the agency, if it can be shown that "moving first before the agency would be impracticable". Petitioners asserted that first moving before OSHA would be 'futile". The Petitioners alleged 10 violations in the suit. They are violations of the:
Federal Procurement Act (FPA);
Federal Procurement Policy Act (FPPA);
Administrative Procedures Act (APA);
Tenth Amendment (States have the police powers, not the federal government);
Non-Delegation Principle (asserted under the Separation of Powers and the Legislative and Executive Vesting Clauses of the U.S. Constitution);
Fifth Amendment Due Process rights to bodily integrity and to refuse medical treatment;
Fourth Amendment right to privacy and to be free from a mandate that is an unconstitutional seizure of the person;
First Amendment violation of free exercise of religion;
Religious Freedom Restoration Act (RFRA), (imposes a substantial burden on the exercise of religion), and;
Separation of Powers and Take Care clauses of the Constitution (the President has an obligation to faithfully enforce the laws that Congress has enacted).
UPDATE: On November 6, 2021, the Fifth Circuit granted the Plaintiffs’ TRO and stayed the implementation of the OSHA ETS.
Subsequently, BST Holdings was merged with numerous other cases challenging the OSHA Rule, (a total of 25 state have sued) and assigned by lottery to the Sixth Circuit for adjudication. The case is now known as In Re MCP No. 165, OSHA Rule on Covid-19 Vaccine and Testing, 86 Fed Reg 61402, 21-7000, 12-3-2021, CA6
OSHA Mandate for Businesses with More Than 100 Employees
OSHA Rule - COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS)
Nov. 05, 2021
On November 5, 2021, the Office of Safety and Health Administration (OSHA), Department of Labor (DOL) published, and made immediately effective, an interim final rule, an emergency temporary standard (ETS), which was designed “to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 by strongly encouraging vaccination.”
Despite the non-compulsory language of that statement, the OSHA ETS then states, “Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy,….”
The ETS allows for an exception for employers who require regular COVID testing and masking in lieu of vaccination.
See the OSHA Rule here.
The State of Georgia, With 7 Other States Challenge EO 14042 on Numerous Federal Statutory Administrative and Procurement Grounds
The State of Georgia, et al., v. Biden, et al., 21-cv-00163
Oct. 28, 2021U.S. District Court, Southern District of Georgia
On October 29, 2021, the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia sued the Biden Administration for Declaratory and Preliminary and Permanent Injunctive Relief under the U.S. Constitution, Art. 3 Sec. 2, and under 5 USC, §§ 702–703 of the Administrative Procedure Act (“APA”), from President Biden’s Executive Order 14042 (“EO 14042”), which is the federal vaccine mandate pertaining to federal government contractors in their respective states.
The States attack the Office of Management and Budget (“OMB’s”) Determination of the Promotion of Economy and Efficiency in Federal Contracting Pursuant to the EO 1402, dated September 28, 2021, as violative of the APA. The States allege that the OMB’s determination is phrased in conclusory terms, contains no research, no supporting evidence, and violates the notice and comment requirements of the APA. The Complaint enumerates numerous adverse impacts on federal contractors located in the Plaintiff States.
EO 14042, the Complaint alleges, violates the Procurement Act, 40 USC 101, 121, and the Federal Procurement Policy, 41 U.S. Code § 1707(a).
Also, the Plaintiffs assert that EO 14042 is unconstitutional under Art. 1, Section 1, as it is an unconstitutional delegation of legislative authority to OMB, with no statutory enabling legislative authority from Congress; a violation of separation of powers; an improper exercise of authority under U.S. Constitution Art. 1 Sec 8. It also violates the Tenth Amendment, improperly infringing on the authority of the States.
The Plaintiff’s additionally allege that EO 14042 violates the Spending Clause and of the APA, 5 USC Sec. 706.
Plaintiff States seek Declaratory and Preliminary and Permanent Injunctive Relief, against the "broad-sweeping, unlawful, and unconstitutional COVID-19 vaccine mandate.”
UPDATE: On December 7, 2021, the Plaintiffs preliminary injunction was granted and the EO 14042 was enjoined by the court.
Case Against the Health Care Facilities Alleging They Are State Actors Subject to Coercive Measures by the Federal Government
Darling, et al. v. Sacred Heart Health System, Inc., et al., 3:21-cv-01787-TKW-HTC
Oct. 27, 2021U.S. District Court, Northern District of Florida
On October 27, 2021, a group of 164 health care employees and contractors of Ascension Health Alliance and several of its North Florida hospitals sued Sacred Heart Health System (Ascension) over its COVID-19 vaccination mandates, challenging the Biden Administration's OSHA and CMS mandates.
The suit alleges both U.S. Constitution and Florida State Constitution violations, including that Ascension's vaccine mandate violates the Plaintiffs’ right to privacy under the Florida State Constitution. Further, the suit alleges Ascension discriminates against Plaintiffs in violation of Title VII of the Civil Rights Act and the Florida Civil Rights Act.
The suit charges that Ascension is acting under color of law as a state actor in that it is doing the bidding of the federal government who has coerced and encouraged the company to act in ways that violate the Constitution. The suit states, “Ascension Group is a state actor under both the Public Function Test and the State Compulsion Test, since it is undertaking public health functions traditionally the exclusive prerogative of the state, and has been coerced and significantly encouraged by the federal government to violate the Plaintiffs’ Constitutional rights.” The Complaint alleges that the federal government has entered into the Defendants’ decision-making process, such that the Defendants’ choices may be deemed those of the federal government.
The action seeks injunctive and declaratory relief and seeks a TRO against the implementation of the vaccine mandate deadlines.
DC Complaint Against the Biden Administration, A Challenge to Federal Vaccine Mandates on Constitutional and Federal Statutory Grounds, Complaint for Injunctive Relief and a Temporary Restraining Order
Church et al. v. Biden, et al. 1:21-cv-02815
Oct. 24, 2021U.S. District Court for the District of Columbia
On October 24, 2021, a Complaint was filed by federal civilian employees and military members from several federal government agencies against the heads of all respective Administration agencies challenging the federal mandate for the COVID-19 vaccine, asserting violations of the First Amendment Free Exercise Clause, Fifth Amendment Equal Protection Clause, the Religious Freedom Restoration Act (RFRA), and the Food, Drug & Cosmetic Act (FDCA).
The suit asserts that Defendants violate Plaintiffs' First Amendment right to free exercise of their religion because: the agencies target certain "agency" employees without mandating vaccination of other agency employees from the White House, NIH, NIAID, EOP, and CDC; there was an intentional effort to deprive Plaintiffs’ of their exercise of their religious beliefs; agencies submitted Plaintiffs’ to intrusive questionnaires without reason to question the sincerity of their beliefs, and; agencies set “non-deadlines” for submission of requests for accommodation for the sole purpose of collecting data on Plaintiffs that they had no right to collect.
The Complaint also asserts that agencies violated: RFRA when they effectively prohibited Plaintiffs from seeking and receiving religious exemptions and accommodations; the Equal Protection Clause when they required different things (mandatory vaccines for some, but not for others) of similarly situated employees, and discriminated against Plaintiffs based on their sincerely held religious beliefs; and the FDCA because Plaintiffs are being denied their statutorily provided option under the Act to accept or refuse the administration of the vaccine.
Plaintiffs seeks injunctive relief and a Temporary Restraining Order (TRO).
A Class Action Suit of Military Service Members and Civilians Against the Biden Administration, DOD and DHS
Navy Seal 1, et al. v Biden, et. al., 8-21-cv-02429
Oct. 12, 2021U.S. District Court, Middle District of Florida
On October 12, 2021, a multitude of military service members filed for class status in a suit against the Biden Administration, the DOD and the DHS challenging their vaccine mandate. The suit alleges violations of the First Amendment Free Exercise Clause in that the Defendants are not recognizing nor respecting the Plaintiffs’ sincerely held religious beliefs in their requests for religious exemptions from the vaccination mandate, while the Plaintiffs have offered and are willing to comply with reasonable safety alternatives to taking the vaccine.
Additionally, the class asserts that Defendants’ actions, in ignoring or denying their requests for religious exemptions, violates the Religious Freedom Restoration Act (RFRA). The Plaintiffs also assert violations of the Emergency Use Authorization (EUA), in that, despite misreporting by the media, there remains no fully FDA approved COVID-19 vaccine on the market. As such, the Plaintiffs have a right to refuse the shots that are, at this point, still experimental in nature. The DOD is not following their own directive that states they will only administer fully licensed and approved FDA vaccines; since there are none that exist, they are administering EUA products.
The suit seeks a TRO and preliminary and permanent injunction restraining Defendants from enforcing, threatening to enforce, or otherwise requiring compliance with the Federal COVID-19 Vaccine Mandate
Military Members Challenge the Vaccine Mandate on Federal Statutory as well as U.S. Constitutional Grounds
John Doe #1-#14, Jane Doe #1-2, et al. v. Austin, et al, 3:21-cv-01211-TKW-HTC
Oct. 08, 2021U.S. District Court, Northern District Florida
On October 8, 2021, active-duty service members from each branch of the military filed a Complaint against the DOD challenging the DOD mandate for the COVID-19 vaccine, and FDA’s approval of the Pfizer/BioNTech Comirnaty on the grounds of violations of the Administrative Procedures Act (APA), as well as violations of Fifth, Ninth, and Fourteenth Amendments.
The Complaint alleges the DOD and FDA violated the APA in that DOD’s vaccine mandate modified or partially repealed existing DOD guidance without the required notice and comment period, and in that FDA’s approval of the Pfizer/BioNTech Comirnaty vaccine was done in record time for the purpose of unconstitutional vaccine mandates rather than on findings that the vaccine meets statutory requirements or that the vaccine has demonstrated long-term safety, efficacy, or public health benefits.
The Complaint asserts that the FDA has violated the Food, Drug & Cosmetic Act (FDCA), the Public Health Service Act (PHSA), and service members’ informed consent rights based on a bait-and-switch tactic that permits the EUA Pfizer and the FDA approved Comirnaty to be given interchangeably as if they were both fully licensed.
Plaintiffs seek injunctive relief and a Temporary Restraining Order (TRO).
PICA Files Lawsuit Against UPenn Alleging Vaccine Mandate is Compelling Political Speech in Violation of the 1st Amendment
PA Informed Consent Advocates, Inc. v. University of Pennsylvania Health System et al., No. 5:21-cv04415
Oct. 07, 2021U.S. District Court for the Eastern District of Pennsylvania
On October 7, 2021, Plaintiffs PA Informed Consent Advocates, Inc. (PICA), an organization comprised of medical professionals, filed suit against University of Pennsylvania Health System (UPHS), a network of hospitals in Eastern Pennsylvania. The suit challenges the OSHA and CMS mandates, asserting that UPHS is a state actor and therefore is subject to constitutional constraints.
The suit notes that the government has been encouraging "corporations to act as government agents to require full vaccination as a condition to employment." Further, "These efforts have gradually ramped up in intensity culminating with President Joseph R. Biden instructing government agencies overseen by Ketcham and Becerra (OSHA and CMS) to draft regulations to require private businesses under their purview to mandate vaccination against COVID-19 thereby making these businesses, if they were not already, government agents and thus government 'actors' under the law."
PICA alleges that its members hold beliefs contrary to Defendant’s recent orders and are under direct threat of termination because they have opted to refuse the mandated vaccinations and because they have refused to disclose their vaccination status.
PICA asserts that the act of non-compliance of the vaccine mandates, be it for sincerely held religious reasons or more personal reasons, holds the intent, weight, and social effect of partisan political speech, because the COVID-19 vaccines are now completely politicized by the federal government. PICA asserts the UPHS action is a direct violation of the 1st and 14th Amendments to the U.S. Constitution and of the Constitution of the Commonwealth of Pennsylvania.
Plaintiffs allege that the Defendants University of Pennsylvania Health System (UPHS), Scott Ketcham, and Xavier Becerra have conspired to violate the First Amendment, compelling individuals to participate in political speech, and conspired to violate their Fourteenth Amendment rights. They accuse UPHS of being a state actor dutifully implementing the government's political agenda.
Plaintiffs argue violations of Fourteenth Amendment rights, both to privacy, in having to reveal their vaccine status, and to bodily autonomy, in being forced to either take the shot or lose their livelihood. UPHS has attempted to and continues to harass, embarrass, and shame unvaccinated employees. Following its threat to penalize those who are unvaccinated, UPHS has formally terminated the contracts of a number of Plaintiff's members. Plaintiffs note that UPHS already had in place standard vaccine exemption review policies which were recently made far more restrictive for COVID-19 vaccines using overly subjective methods “by leadership … wholly unqualified by any objective measure to make such a determination,” leading to inconsistently approve religious exemptions for employees it deemed as more valuable.
Plaintiffs seek declaratory and injunctive relief and compensatory damages with the suit
DC Complaint Against the Biden Administration, A Challenge to Federal Vaccine Mandates on Constitutional and Federal Statutory Grounds, Complaint for Injunctive Relief and a Temporary Restraining Order
Church, et al. v. Biden, et al. 1:21-cv-02815
Oct. 04, 2021U.S. District Court for the District of Columbia
On October 24, 2021, a Complaint was filed by federal civilian employees and military members from several federal government agencies against the heads of all respective Administration agencies challenging the federal mandate EO 14043 and the August 24, 2021 DOD Memorandum mandating the COVID-19 vaccine. The Complaint asserts violations of the First Amendment Free Exercise Clause, Fifth Amendment Equal Protection Clause, the Religious Freedom Restoration Act (RFRA), and the Food, Drug & Cosmetic Act (FDCA).
The suit asserts that Defendants violate Plaintiffs' First Amendment right to free exercise of their religion because: the agencies target certain "agency" employees without mandating vaccination of other agency employees from the White House, NIH, NIAID, EOP, and CDC; there was an intentional effort to deprive Plaintiffs’ of their exercise of their religious beliefs; agencies submitted Plaintiffs’ to intrusive questionnaires without reason to question the sincerity of their beliefs; and agencies set “non-deadlines” for submission of requests for accommodation for the sole purpose of collecting data on Plaintiffs that they had no right to collect.
The Complaint also asserts that agencies: violated RFRA when they effectively prohibited Plaintiffs from seeking and receiving religious exemptions and accommodations; violated the Equal Protection Clause when they required different things (mandatory vaccines for some, but not for others) of similarly situated employees and discriminated against Plaintiffs based on their sincerely held religious beliefs; and violated the FDCA because Plaintiffs are being denied their statutorily provided option under the Act to accept or refuse the administration of the vaccine.
Plaintiffs seeks injunctive relief and a Temporary Restraining Order (TRO).
DC Complaint Against the Biden Administration Opposing Vaccine Mandates of Federal Employees and Contractors - Asserting Unlawful, Manipulative, Coercive and Deceptive Tactics; Complaint for Declaratory and Injunctive Relief
Costin, et al v. Biden/Austin, 1:21-cv-2484
Sep. 23, 2021U.S. District Court for the District of Columbia
On September 23, 2021, a Complaint was filed by federal civilian employees and government contractors from several federal government agencies against President Biden and Secretary of Defense Austin seeking redress for unlawful, manipulative, coercive, and deceptive tactics in the proclamation and implementation of a COVID-19 vaccine mandate.
Plaintiffs challenge Executive Orders 14042 and 14043 and Department of Defense Orders for the COVID-19 vaccine, asserting violations of the Fifth Amendment rights to Substantive Due Process and Equal Protection, the Food, Drug and Cosmetic Act (FDCA), the Administrative Procedures Act (APA), and the Religious Freedom Restoration Act (RFRA).
As to the Fifth Amendment, the Complaint alleges that the government Defendants violate the Plaintiffs' right to Substantive Due Process because Plaintiffs “have a fundamental right to privacy,” liberty, and “right to bodily integrity” and informed consent… and a “competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.” Because the rights are fundamental, the vaccine mandates must survive strict scrutiny. The Complaint also alleges a violation of the Equal Protection Clause. The mandates appear facially neutral, however, they are unconstitutional as applied, because they deny Plaintiffs the control over their own health decisions and create second class citizenship on the basis of religion. Since the vaccines are still under EUA, including the Pfizer product which is not fully FDA approved, the EO violates Plaintiff’s right to accept or refuse the vaccine, as required by the FDCA.
As to the APA, the delay imposed by the EO on those seeking religious and medical exemptions is a violation, the Complaint alleges. Significantly, the RFRA is violated, in that Plaintiff’s religious rights are substantially burdened, as it affects their ability to maintain and seek future employment, and to “abide by the principles, beliefs, morals, values, or practices of their religion,” and it “ostracizes Plaintiffs.”
Plaintiffs seeks injunctive and declaratory relief.
State of Arizona Complaint Challenging Why Illegal Aliens Are Being Treated Differently Than U.S. Citizens (Federal Employees) With Regard To Vaccine Mandates
Brnovich v. Biden, et al., No. 2:21-cv-01568
Sep. 14, 2021U.S. District Court, District of Arizona
On September 14, 2021, on behalf of the State of Arizona and a federal employee, Arizona Attorney General, Mark Brnovich sued Pres. Biden, the Secretary of DHS and others, challenging the constitutionality of vaccine mandates applicable to federal contractors and employees. The Complaint and Amended Complaint make claims challenging the constitutionality of treating unauthorized aliens differently from U.S. citizens, and the authority of the federal government to issue these vaccine mandates.
The lawsuit alleges violations of the Fifth Amendment equal protection and due process clauses, as well as the Fifth Amendment right to bodily autonomy and to refuse medical treatment; Tenth Amendment Federalism principle; 41 USC 1707 (a), the Procurement Policy Act; 40 USC 101 and 121, the Procurement Act, and; 5 U.S.C. 706, Administrative Procedures Act. Additionally, the Plaintiffs seek injunctive relief against mandates forcing experimental vaccines distributed under EUAs under 21 USC 360bbb-3, seeking to make the experimental vaccines voluntary only. Further claims are made regarding violations of immigration procedures, and all attorneys’ fees and costs of litigation are sought under the Equal Access to Justice Act, 28 USC 2412.
The State is seeking declaratory relief as well as a TRO.
President Biden’s Executive Order 14042 - Ensuring Adequate COVID Safety Protocols for Federal Contractors
Sep. 09, 2021Mandate on Federal Contractors
President Biden’s Executive Order 14042 (“EO 14042”) mandates that any contracts with the federal government, including subcontracts, must include a clause that specifies that the contractor will comply with all guidance regarding workplace locations published by the Safer Federal Workforce Task Force (Task Force).
It ordered that by September 24, 2021, the Task Force was to issue their guidance related to COVID-19 for contractor and subcontractor locations.
The EO 14042 amended the Federal Acquisition Regulations (“FAR’s”) and gave federal agencies until October 8, 2021 to ensure that the appropriate clauses consistent with the guidance were included in all future contracts and solicitations.
See Executive Order here.
Biden EO 14043 - Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
Sep. 09, 2021Mandate on Federal Employees
President Biden’s Executive Order (EO) #14043 mandated that COVID-19 vaccines were mandatory for all federal employees, subject to any exceptions required by law.
It ordered each federal agency to implement a program requiring COVID-19 vaccines and ordered the Safer Federal Workforce Task Force (Task Force) to issue guidance to agencies within 7 days of the date of the EO.
The Task Force’s guidance required employees to be fully vaccinated by November 22, 2021.
See Executive Order here
Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members
Aug. 24, 2021Mandate on Military Service Members
The DOD Memo signed on August 24, 2021, mandates that every service member receive vaccines for COVID-19. It directs the Secretaries of the Military Departments to begin implementation of fully vaccinating "all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard." However, the mandate does allow exemption for "any identified contraindications" or any other "exemptions established in Military Department policy."
Subsequently, the individual military branches set their vaccine deadlines:
See DOD Memo here.
CMS Rule - Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense
Aug. 18, 2021Mandate on Health Care Workers
On August 18, 2021, the Biden Administration announced that CMS would promulgate a regulation for all nursing homes which receive funding from Medicare and Medicaid requiring them to mandate their employees receive the COVID vaccination.
On September 9, 2021, the Biden Administration expanded its vaccination requirement to apply to all Medicare and Medicaid-certified facilities in order for those facilities to continue to participate in those government programs.
On November 4, 2021, the Centers for Medicare & Medicaid Services (CMS) published, and made immediately effective, an interim final rule which revised the requirements that most Medicare and Medicaidcertified providers and suppliers must meet in order to participate in the Medicare and Medicaid programs.
The Interim Final Rule with Comment Period is entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” 86 Fed. Reg. 61,555.
The revisions mandated that all staff at included Medicare and Medicaid-certified facilities (including suppliers and providers - surgery centers, hospices, residential treatment facilities, hospitals, long term care facilities, home health agencies, etc.) be vaccinated with a COVID-19 vaccine by January 2, 2022. The mandate did not apply to private physician offices not regulated by CMS.
See the CMS Rule here.
Military Members File Class Action Against DOD, HHS and FDA
Dan Robert, et. al., v. Austin, et. al., 1:21-cv-02228
Aug. 17, 2021U.S. District Court, District of Colorado
On August 17, 2021, Plaintiffs, military personnel brought a class action Complaint against DOD, HHS and FDA on behalf of the class of all other similarly situated military members. The class consists of all active duty, reserve or National Guard members who have recovered from COVID-19, reported it, and who are now being ordered to take a COVID-19 vaccine despite having natural immunity from their recovery.
The Plaintiffs assert violations of the APA in that the DOD has violated its own regulations, DOD Instruction 6200.02 and Army Regulation 40-562, by ignoring the Plaintiff’s right to informed consent and forcing the Plaintiffs to get a vaccine even though they have previously had a COVID-19 infection. They further allege that the vaccines are violative of 10 U.S.C. 1107, which requires notice of the use of "an investigational new drug or a drug unapproved for its applied use," and 10 U.S.C. 1107a, which pertains to "emergency use products," because DOD has subjected them to being forced to take an Investigational New Drug (IND) without informed consent or following any of the procedures outlined in the statutes that allow for the Plaintiffs to opt out of the vaccines.
The final count in the Complaint is that the DOD mandate violates 50 U.S.C. 1520 because Defendants are forcing Plaintiffs to undergo unwanted medical treatments under the pretext of a public emergency, which is against the sacrosanct principle of informed consent that flowed out of the Nuremburg tribunals.
The Complaint seeks declaratory and injunctive relief.
A Three State Challenge Alleging State Harm Against Biden’s EO 14042, Federal Contractor Mandate
The Commonwealth of Kentucky, et al., v. Biden, et al., 3:21-cv-55, WL 5587446
Nov. 04, 2021
Nov. 08, 2021
Nov. 30, 2021U.S. District Court, Eastern District of Kentucky
The States of Kentucky, Ohio, and Tennessee, along with two Sheriffs of two separate Ohio counties, filed suit on November 4, 2021, challenging President Biden’s Executive Order 14042 (“EO 14042”), which requires all federal contractors and subcontractors to mandate COVID-19 vaccines for their employees to maintain their contractual relationship with the federal government.
The Plaintiffs allege that EO 14042 harms the Plaintiff States. The EO 14042 also preempts all contrary State laws, violates the State’s sovereignty, including quasi-sovereignty and parens patriae interests (i.e., the States’ interests in setting their own workplace and public health laws within their borders), as well as their interests in the economic well-being of their citizens, especially those who may lose their jobs because of the mandates. EO 14042 also violates the interests of the States’ well-being of their residents, who will suffer due to potential supply chain disruptions caused by employee staff reductions.
The Plaintiffs allege EO 14042 also infringes on the States’ constitutional police powers regarding setting their own vaccination policies. They challenge Biden’s Task Force Guidelines and the Federal Acquisition Regulatory (“FAR’s”) Council Guidance as being arbitrary and capricious as they were implemented with no express findings, no explanation, and no consideration of the “distinct and diverse universe of federal agencies.”
Additionally, the Office of Management and Budget (“OMB”) should have conducted their own analysis of the Task Force Guidance since the Guidance is not based on reasoned decision-making and ignores many important and relevant impacts to the Plaintiff States. Further, the EO 14042, the Task Force Guidance, OMB’s determination, and FAR all fail to demonstrate the nexus between a vaccine mandate and the Federal Property and Administrative Services Act’s (“FPASA”) requirement of providing the federal government with an “economic and efficient system” of procuring and supplying property and non-personal services.
Therefore, EO 14042, the Complaint alleges, exceeds the President’s authority where FPASA is concerned. Neither the FPASA nor any other law passed by Congress gives the President any statutory authority to issue the sweeping EO 14042 mandate, and the President’s actions run afoul of the non-delegation doctrine.
The Complaint alleges the mandates imposed in EO 14042 are legislative actions, having “the effect of a generally applicable, binding rule governing private conduct” and, as such, EO 14042 violates the Separation of Powers and Federalism doctrines.
Also, EO 14042 represents an unconstitutional exercise of the Spending Power because it asks the States to agree to ambiguous contract terms that are not rationally related to any federal interest in any specific program or project, and the terms can be changed at any time.
The Court preliminarily enjoined EO 14042 in Kentucky, Ohio and Tennessee.
The court narrowed the question to “Can the President use Congressionally-delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors?”
The Court ruled, “Essentially, the effect of the FAR Memo is to force contractors and subcontractors with existing federal government contracts to include a vaccine mandate in their current contracts by adding a deviation clause to their current contracts. … [M]oving forward, those contractors who refuse to include a deviation clause, many of whom rely on federal contracts, are provided with a Hobson’s choice: add the vaccine mandate to your current federal contracts by way of the deviation clause or lose out on future federal contracts.” Thus, the court found that Plaintiffs “have sufficiently demonstrated that they have suffered an injury in fact, that the injury is fairly traceable to the Defendants’ actions, and that enjoining the vaccine mandate will redress the Plaintiffs’ injuries.”
The Court found that the President’s authority under FPASA is not absolute and that “there must be a ‘close nexus between the Order and the objectives of the Procurement Act.’” Here, “the President exceeded his authority under the FPASA.”