Rydie et al v. Biden et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/19/2021. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ISRAEL RYDIE, et al.
:
v.

:

Civil Action No. DKC 21-2696

:
JOSEPH R. BIDEN, in his official
capacity as President of the
:
United States, et al.
:
MEMORANDUM OPINION
This is one of a growing number of cases challenging various
aspects of the federal employee COVID-19 vaccination requirements.
Currently pending and ready for resolution is Plaintiffs’ motion
for a preliminary injunction.

(ECF No. 7).1

The issues have been

fully briefed, (ECF Nos. 21; 23), and a hearing was held on
November 18, 2021.

For the following reasons, Plaintiffs’ motion

will be denied.
I.

Background
On September 9, 2021, President Biden issued Executive Order

14,043

requiring

that

all

federal

government

employees

be

vaccinated against COVID-19, with exceptions as required by law.

1

Plaintiffs also styled their motion as one for a temporary
restraining order but did not attempt to proceed ex parte or with
the required urgency.
The motion is addressed as one for
preliminary injunction only.

(ECF No. 13-1, at 24 (Exhibit A)).2

The President determined that

this policy was necessary because COVID-19 threatens “[t]he health
and safety of the Federal workforce, and the health and safety of
members

of

the

public

with

whom

they

interact,

[which]

foundational to the efficiency of the civil service.”

are

(Id.).

Subsequently announced guidance requires employees to be fully
vaccinated by November 22.

(Id., at 27 (Exhibit B)).

Employees

were required to provide documentation that they received a onedose vaccine or the second dose of a two-dose vaccine by November
8, 2021.

(Id., at 31, 35-36 (Exhibit B)).

The requirement is not being enforced immediately and is
applied consistent with different escalating enforcement processes
at each federal agency.

(ECF No. 13-1, at 35-36).

Agencies are

encouraged to initiate the process with education and counseling
and progress to a suspension of up to fourteen days before taking
the ultimate step of proposed termination.

(Id.).

Agencies can

adopt their own timelines and make adjustments for individual
employees but cannot except anyone from the requirement unless
required by law.

(Id.).

Plaintiffs are civilian federal employees subject to the
vaccine requirement.

One works at the Defense Information Systems

2

ECF No. 13-1 is the unredacted version of the complaint
initially filed at ECF No. 1. It was unsealed after the court
denied Plaintiffs’ motion to proceed anonymously, (ECF No. 24),
and is a single PDF document, even though it includes attachments.
2

Agency

(“DISA”)

and

the

Administration (“FDA”).

other

works

at

the

Food

(ECF No. 13-1, ¶¶ 16, 20).

and

Drug

They claim

that they will be fired imminently because they will refuse to
report their vaccination status.

(Id., ¶¶ 18-19, 22-23).

They

have not applied for exceptions and do not intend to do so.

(ECF

No. 23, at 6).

During an unrecorded teleconference on October 29

and at the November 18 hearing, counsel for Defendants indicated
that DISA and the FDA would not finalize any proposed termination
before January 2022.
II.

Analysis
Plaintiffs

request

a

nationwide

preliminary

injunction

prohibiting Defendants from collecting or retaining information
about vaccination status and from making vaccination a condition
of employment.

They argue that, in adopting such practices, the

Defendants violate: (1) federalism principles,3 (2) separation of
powers principles, (3) the right to due process, and (4) the
individual rights to bodily integrity and privacy.
3-20).

(ECF No. 7, at

They claim that they will be fired for refusing to report

their vaccination status, and that their reputations and future
employment opportunities will be harmed because they will receive

3

Plaintiffs suggest this argument is grounded in the
“Separation of Powers doctrine[.]” (ECF No. 7, at 3-7).
It is
more aptly grounded in the federalism doctrine because Plaintiffs
cite to the Tenth Amendment and argue that the federal government
is exercising powers retained by the states.
3

a “mark of misconduct on [their] Official Personnel File[s.]”
(Id., at 20-21; see also ECF No. 13-1, at 12-14).

They may also

claim that they are currently harmed by the change in their
conditions of employment.4
Preliminary injunctions are “extraordinary remedies involving
the

exercise

of

very

far-reaching

power

sparingly and in limited circumstances.”

to

be

granted

only

MicroStrategy Inc. v.

Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quotation
omitted).

The Supreme Court has held that the party seeking a

preliminary injunction must demonstrate that: (1) the party is
likely to succeed on the merits “by a clear showing”; (2) the party
is likely to suffer irreparable harm, also by a “clear showing,”
in the absence of preliminary relief; (3) the balance of equities
tips in the party’s favor; and (4) preliminary injunctive relief
is in the public interest.

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20, 22 (2008); Real Truth About Obama, Inc. v. FEC,
575 F.3d 342, 345–47 (4th Cir. 2009), vacated on other grounds, 130
S.Ct. 2371 (Mem) (2010).

Where the government is the defendant,

courts analyze the third and fourth factors together. Roe v. Dep’t
of Def., 947 F.3d 207, 230 (4th Cir. 2020) (citing Nken v. Holder,
556 U.S. 418, 435 (2009)). None of the factors are satisfied here.

4

Plaintiffs’ have not stated on the record whether they are
vaccinated or intend to be.
The court assumes for this motion
that Plaintiffs object to vaccination because their bodily
autonomy claim would otherwise be meritless.
4

A.

Likelihood of Success on the Merits

Plaintiffs have not shown that they are likely to succeed.
It may well be that this court lacks the authority to adjudicate
their case or to order some of the requested relief.

Even if it

can adjudicate the case, Plaintiffs have not shown that they are
likely to prevail on any of their constitutional arguments.
1.

Federal Court Authority

a)

Subject Matter Jurisdiction

Federal district courts generally have original jurisdiction
over civil actions requesting equitable relief that arise “‘under
the Constitution, laws, or treaties of the United States.’”

See

Bennett v. SEC, 844 F.3d 174, 178 (4th Cir. 2016) (quoting 28 U.S.C.
§ 1331).

But Congress can “impliedly preclude jurisdiction by

creating a statutory scheme of administrative adjudication and
delayed judicial review in a particular court.”

Id. (citations

omitted).
Under

the

Civil

Service

Reform

Act

(“CSRA”),

federal

employees can appeal certain serious adverse employment actions
directly to the Merit Systems Protection Board (“MSPB”) and the
Federal Circuit.

See 5 U.S.C. §§ 7513(d); 7703(b)-(c).

adverse actions include termination.

5 U.S.C. § 7512.

Those

In Elgin

v. Department of Treasury, the Supreme Court held that “the CSRA
provides the exclusive avenue to judicial review when a qualifying
employee challenges an adverse employment action by arguing that
5

[it] is unconstitutional.”

567 U.S. 1, 5 (2012).

To the extent

Plaintiffs challenge their future terminations, they likely have
to proceed through the CSRA process, even though they assert
constitutional challenges.

Plaintiffs also raise their future

receipt of a mark of misconduct and possibly the current change in
their “conditions” of employment.

These claims share the same

underlying facts and therefore likely “fall under the [same]
umbrella” for CSRA purposes.

See Lim v. United States, No. 10-

cv-2574-DKC, 2011 WL 2650889, at *6 (D.Md. July 5, 2011); see also
Elgin, 567 U.S. at 22.
In any case, employees can challenge less severe actions that
violate “prohibited personnel practices,” including constitutional
violations, by filing a complaint with the Office of Special
Counsel

(“OSC”).

5

U.S.C.

§§

1214(a)(1)(A);

2302(a)(2)(A);

2302(b)(12); see also id. § 2301(b)(2); Weaver v. U.S. Info.
Agency, 87 F.3d 1429, 1432-33 (D.C. Cir. 1996).

If the OSC

determines that the practice was improper, it can recommend changes
to the agency and then petition the MSPB to order corrective
action.

5 U.S.C. § 1214(b)(2)(B)-(C).

If the MSPB denies the

petition, harmed employees can appeal to the Federal Circuit.

Id.

§§ 1214(c); 7703(b)-(c). The Fourth Circuit held in an unpublished
opinion that formal reprimands can be challenged this way, that
the OSC process is part of the comprehensive CSRA scheme, and that
it precludes district court jurisdiction (unless an employee were
6

not allowed to appeal a constitutional challenge to the Federal
Circuit).

Fleming v. Spencer, 718 F.App’x 185, 186, 188 & 188 n.2

(4th Cir. 2018); see also NASA v. Nelson, 562 U.S. 134, 149 (2011)
(“[I]f every employment decision became a constitutional matter,
the Government could not function.” (cleaned up)).

Plaintiffs do

not argue that they attempted to exhaust this process, that Fleming
does not apply, or that it was wrongly decided.
It

is

Plaintiffs’

burden

to

establish

subject

matter

jurisdiction, and their showing is questionable at best.
b)

Equitable Power

Even if Plaintiffs can bring suit in this court now, they
cannot

obtain

the

relief

they

seek

against

President

Biden.

Federal courts are generally without power to enjoin the President.
Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992); Int’l
Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.),
vacated on other grounds, 138 S.Ct. 353 (Mem) (2017). As a result,
Plaintiffs can only request injunctions specific to Secretaries
Austin and Becerra and the Departments they lead.
for

preliminary

injunctive

relief

also

fail

Those requests

for

the

reasons

discussed below.
2.

Federalism and Separation of Powers

Plaintiffs’ federalism and separation of powers arguments are
insubstantial because the executive branch has wide authority to
establish

and

enforce

requirements
7

of

employment

within

the

federal government.

“Time and again [the Supreme Court has]

recognized that the Government has a much freer hand in dealing
with citizen employees than it does when it brings its sovereign
power to bear on citizens at large.”
(quotation omitted).

Nelson, 562 U.S. at 148

Plaintiffs argue that states’ retention of

power over public health prohibits the federal government from
acting

in

that

sphere.

Plaintiffs

are

wrong.

The

federal

government’s exercise of its enumerated powers does not infringe
on powers reserved to the states under the Tenth Amendment.

Hodel

v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 291-92
(1981); see also U.S. Const. art. VI, cl. 2.

The executive power

to

conferred

manage

federal

Constitution.

authority.

is

clearly

in

the

See U.S. Const. art. II, § 1, cl. 1.

Plaintiffs
exercised

officers

the

also

argue

legislative

that

power

President
and

Biden

encroached

on

improperly
Congress’s

This argument is meritless, in addition to being

inconsistent with Plaintiffs’ federalism argument.

The President

derives his authority to regulate the federal workforce from the
Constitution, not from Congress’s enactments.
art. II, § 1, cl. 1.
Executive,

it

is

See U.S. Const.

“[I]f any power whatsoever is in its nature
the

power

of

appointing,

controlling those who execute the laws.”

overseeing,

and

Free Enter. Fund v. Pub.

Co. Acct. Oversight Bd., 561 U.S. 477, 492 (2010) (quotation
omitted). Although Congress can limit the scope of the President’s
8

discretion in this arena, it endorsed his action here.

The civil

service laws state that the President may “prescribe regulations
for the conduct of employees in the executive branch,” 5 U.S.C. §
7301, and terminate employees for cause, 5 U.S.C. § 7513(a). Those
statutes also make clear that employees’ fitness and health are
relevant to their job performance.
3.

Due Process

Plaintiffs’
meritless.

5 U.S.C. § 3301(2).

procedural

due

process

argument

is

equally

They contend that Defendants “seek to implement the

Vaccine Mandate by summary dismissal of Plaintiffs . . . without
a meaningful opportunity to be heard.”

(ECF No. 13-1, ¶ 58).

Any

cognizable property or liberty interest Plaintiffs have in their
federal employment is protected by ample procedures.

Because the

CSRA provides for a full post-termination hearing, 5 U.S.C. § 7701,
the sole question is whether Defendants’ enforcement of the vaccine
requirement will offer a sufficient “opportunity for a hearing
before” discharge.

See Curtis v. Montgomery Cnty. Pub. Schs., 242

F.App’x 109, 111 (4th Cir. 2007) (unpublished) (citing Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)).
A public employee is “entitled to oral or written notice of
the charges against him, an explanation of the employer’s evidence,
and an opportunity to present his side of the story.”
Loudermill, 470 U.S. at 546).

Id. (quoting

Neither party has identified the

procedures formally adopted by DISA and the FDA to enforce the
9

Executive Order.

But both agencies must comply with civil service

laws that afford Plaintiffs all the process that they are due.
See 5 U.S.C. § 7513 (requiring 30 days’ notice, at least seven
days to answer, and a written decision).5

Plaintiffs offer nothing

to suggest that Defendants will not follow these requirements.
The remaining arguments included within Plaintiffs’ broader
Due Process challenge are also baseless.

Plaintiffs have not

clearly shown that a protected liberty interest is deprived by the
government making vaccination a condition of employment.

They

remain free from bodily restraint and free to contract for future
employment.

See Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 572 (1972).

Nor have they shown that the President exceeds

his authority by adopting the requirement, as discussed above.
4.

Bodily Integrity and Privacy Rights

Plaintiffs’ bodily integrity and privacy arguments are also
ill conceived.

Plaintiffs argue that the vaccine requirement

violates their right to make informed choices about their own
medical treatment.

(ECF No. 7, at 7, 11, 14).

Although this right

is well-established, it is narrowly drawn and does not reach this
case.

The right is grounded in “the common-law rule that forced

medication was a battery[.]”

Washington v. Gluckberg, 521 U.S.

5

Plaintiffs cite to 5 U.S.C. § 7503 which establishes the
procedures for less serious adverse actions.
5 U.S.C. § 7513
establishes the procedures for terminations.
10

702, 725 (1997).

Cases that have implicated this right dealt with

the forced administration of medical treatments to individuals
without the capacity to refuse care – an individual in a vegetative
state in Cruzan ex rel. Cruzan v. Director, Missouri Department of
Health, 497 U.S. 261, 284 (1990), and a prisoner in Washington v.
Harper, 494 U.S. 210, 236 (1990).

Short of removing a person’s

capacity to refuse treatment, the government is not “required to
remain neutral” toward individuals’ choices.
at 280.
cross

See Cruzan, 497 U.S.

Making vaccination a condition of employment does not

the

line

into

battery

or

reach

the

level

of

coercion

necessary to infringe this fundamental liberty interest.

In

addition, nothing here suggests Plaintiffs are being denied the
information necessary to make an informed choice.

See Klaassen v.

Trs. of Ind. Univ., No. 21-cv-0238-DRL, 2021 WL 3073926, at *25
(N.D.Ind. July 18, 2021), mot. for inj. pending appeal denied,
7 F.4th 592 (7th Cir. 2021).
There also is no related right to refuse vaccination “deeply
rooted in this Nation’s history and tradition[.]”
U.S. at 721 (quotation omitted).
long

tradition

of

upholding

Glucksberg, 521

Quite the opposite.

mandatory

vaccination

There is a
laws

under

rational basis scrutiny because they were necessary to the public
health.

See Jacobson v. Massachusetts, 197 U.S. 11, 25-30, 37-38

(1905); see also Zucht v. King, 260 U.S. 174, 176-77 (1922);
Workman v. Mingo Cnty. Bd. of Educ., 419 F.App’x 348, 355-56 (4th
11

Cir. 2011) (unpublished).

“[E]very court that has considered the

constitutionality of a COVID-19 vaccine mandate by an employer or
university has” held that it satisfied rational basis scrutiny.
Smith v. Biden, No. 21-cv-19457, 2021 WL 5195688, at *6-7 (D.N.J.
Nov. 8, 2021) (citations omitted). Even if the vaccine requirement
implicated a fundamental right, it might survive strict scrutiny.
See Does 1-6 v. Mills, No. 21-1826, 2021 WL 4860328, at *7 (1st
Cir. Oct. 19, 2021).
Plaintiffs’ information privacy argument fares no better.
Any right to keep information private does not prohibit the
government from requesting information reasonably related to its
role as an employer, so long as the information is protected by
the Privacy Act.

Nelson, 562 U.S. at 147-48.

It is reasonable

for the government to request employees’ vaccination status in
light of the risks posed by COVID-19 and that information is likely
protected by the Privacy Act.
B.

See 5 U.S.C. § 552(a)-(b).

Likelihood of Irreparable Harm

Plaintiffs have not shown that they are likely to suffer
irreparable harm.

Harms are irreparable where they “cannot be

fully rectified by the final judgment after trial.”

Mtn. Valley

Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell,
915 F.3d 197, 216 (4th Cir. 2019) (quotation omitted).

Under

ordinary circumstances, loss of employment is not an irreparable
harm.

Sampson v. Murray, 415 U.S. 61, 89-92 & 92 n.68 (1974).
12

Neither are formal reprimands and their effects on an employee’s
reputation and employment prospects.

Id.

Assuming Plaintiffs are

terminated before they obtain a favorable judgment, their injury
can

be

fully

redressed

through

reinstatement,

backpay,

and

expungement of any mark of misconduct.
Plaintiffs point to nothing extraordinary about their likely
harms. They have not clearly shown, for example, that their likely
discharge will result from policies that “bear[] no relationship
to their ability to perform their jobs” or that they will face the
sort of severe and improper stigma as those who disclose their
HIV-positive status.

See Roe, 947 F.3d at 229.

Nor is the court

persuaded by Plaintiffs’ argument on reply that the government
will fail to meet its financial obligations should it be ordered
to grant backpay to thousands of discharged employees.

Finding

that Plaintiffs’ employment-based harms are not irreparable is
also consistent with various recent decisions in similar cases.
E.g., Altschuld v. Raimondo, No. 21-cv-2779, ECF No. 23, slip op.
at 8 (D.D.C. Nov. 8, 2021); Church v. Biden, No. 21-cv-2815, ECF
No. 17, slip op. at 31-32 (D.D.C. Nov. 8, 2021).6

6

Because Plaintiffs’ alleged harms can be fully repaired,
there is no need to reach Defendants’ argument that Plaintiffs’
employment injuries are not imminent.
13

C.

Balance of Equities and Public Interest

The balance of the equities and the public interest weigh
heavily against granting a preliminary injunction.

As discussed

above, any injuries Plaintiffs face can be remedied at a later
date.

By contrast, an injunction barring enforcement of the

vaccine requirement for federal employees would do substantial and
irreparable

harm

to

the

public

health

and

to

the

federal

government’s effectiveness.
COVID-19 poses significant and ongoing risks to the lives and
health of millions of Americans and federal workers, particularly
those who are unvaccinated.

The government’s attempt to stem its

spread, which is “unquestionably a compelling interest,” Roman
Cath. Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020), would
be impeded by an injunction. In addition, the President determined
that

the

health

and

safety

of

the

federal

workforce

is

“foundational to the efficiency of the civil service.” Exec. Order
No. 14,043, 86 Fed. Reg. at 50,989.

The effective administration

of the federal government, in which Defendants and the public have
a deep and abiding interest, would likely be hampered by an
injunction.
Plaintiffs do not challenge the severity of the public health
risk or the safety and effectiveness of the vaccines.

Nor do they

meaningfully identify alternative methods by which the government
could achieve its goal of a fully functioning federal workforce.
14

Indeed, Plaintiffs suggested at the hearing that simply continuing
with the measures implemented since March 2020, without mandating
vaccinations, would enable the federal government to operate until
the pandemic ends, saying, “This too shall pass.”
III. Conclusion
For

the

foregoing

reasons,

Plaintiffs’

preliminary injunction will be denied.

motion

for

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

15

a