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Case updates this week:
August 13, 2024: The United States Court of Appeals for the First Circuit vacated the District Court’s order which dismissed Plaintiff, Amanda J. Bazinet’s religious discrimination claims against Defendants, Beth Israel Lahey Health, Inc. and Beth Israel Deaconess Hospital-Milton, Inc. in Bazinet v. Beth Israel Lahey Health, Inc. In August 2021, Defendant announced its “Mandatory Vaccine Policy,” which required all hospital employees to either receive the COVID-19 vaccine or start the two-dose vaccine protocol by the end of October 2021. Unvaccinated employees would be placed on a fourteen-day leave until they complied with the vaccine mandate. Under the Policy, the Defendants would consider any employee to have “voluntarily terminated” his or her employment if they did not comply within fourteen days. However, the Policy contained both a medical and a religious exemption to the “Mandatory Vaccine Policy.” An employee who requested a religious exemption would not be placed on leave or be terminated while their exemption application was pending.
Plaintiff was an executive office manager when the COVID-19 pandemic started. She timely submitted her “Request for Religious Accommodation – Mandatory Vaccine Policy” to the Defendants. Her request stated that her “religious beliefs, practices, or observances” prohibited her from receiving the vaccine. In her request, she agreed to follow the Defendants’ masking and other preventive measures. The accommodation form stated that if the Hospital denied the accommodation request, it would engage in a process to find an accommodation that would not cause undue hardship to the Hospital.
Defendants informed Plaintiff that her proposal to wear masks and to participate in periodic COVID-19 tests was not sufficient and that allowing her to work while unvaccinated would cause Defendants undue hardship. The Defendants denied Plaintiff’s accommodation request and terminated her employment.
Plaintiff then sued the Defendants alleging a series of claims that included Title VII religious discrimination claims. Defendants moved to dismiss all claims, except for the religious discrimination claims. The District Court issued an order granting Defendants’ motion to dismiss, and on its own order, dismissed Plaintiff’s religious discrimination claim because it determined that “Plaintiff’s complaint had failed to sufficiently allege that her reluctance to be vaccinated was grounded in sincerely held religious beliefs.”
Plaintiff appealed the District Court’s decision to dismiss her religious discrimination claims with prejudice. On appeal, Defendants argued that Plaintiff’s objection was based on the current state of development of the COVID-19 vaccine, not on her religious beliefs. However, the First Circuit further found that Plaintiff successfully explained her religious objections with numerous religious sources that she supplied to the First Circuit that supported her views. The Appeals Court cited the ruling in Ringhofer in finding that Plaintiff’s objection to taking the vaccine arose from the claim that the COVID-19 vaccine was developed using aborted fetal tissue. Defendants challenged the Plaintiff’s claim to religious objection because it appeared she had “largely cut and pasted” them from another source. However, the Court held that the fact that her beliefs can be found on the internet does not mean they are insincere.
The Defendants also contended that the complaint should be dismissed because accommodating the Plaintiff’s religious beliefs would cause them undue hardship. The First Circuit noted that “undue hardship” was an affirmative defense and not an element of the Plaintiff’s claim that she had to plead to survive a motion to dismiss. The First Circuit also referred to the Supreme Court’s decision in Groff v. DeJoy, which defined undue hardship and held that the issue required more factual development, making a motion to dismiss inappropriate. Accordingly, the Appeal Court vacated and remanded the District Court’s order.
August 16, 2024: The United States District Court of the Southern District of New York granted the Defendants’ Motion to Dismiss in Abadi v. American Airlines, Inc., et al. The Plaintiff, Aaron Abadi, is a New York resident who has a sensory processing disorder that prevents him from wearing a mask. The Plaintiff was an avid traveler and claimed he was harmed by the CDC’s COVID-19 mask mandate when he traveled by air during the effective period of the mandate. Abadi, who represented himself in this litigation, alleged a laundry list of claims against dozens of airline companies and several federal officials. All the claims against the private defendants had been dismissed earlier in the litigation. The remaining claims were against federal defendants only.
The District Court dismissed many of the remaining claims in summary fashion because the Court’s earlier rulings against other defendants applied with equal force to the remaining defendants. The District Court addressed the Plaintiff’s claims under the Administrative Procedure Act (“APA”) that the Mask Mandate was an unconstitutional delegation of legislative power in violation of Article I of the United States Constitution and that the Executive Order violates the separation of powers doctrine and the 10th Amendment. However, the Court relied on Health Freedom Defense Fund v. President of the United States to find that the Plaintiff’s claims were moot because the Mask Mandate expired, and the Plaintiff offered no reasonable explanation for why the Court should not follow the Eleventh Circuit’s decision.
The Federal Defendants asked the Court to dismiss the Plaintiff’s various tort claims for lack of subject matter jurisdiction under the discretionary function exception to the Federal Torts Claim Act (FTCA). The Court agreed.
Plaintiff contended that the “Defendants, HHS, CDC, and NIH and attorneys wrongfully interfered in Plaintiff’s contracts with airlines.” The Court held that the FTCA does not waive the Federal Government’s immunity with respect to claims for tortious interference and therefore the claim must be dismissed for lack of subject matter jurisdiction.
Plaintiff argued that Defendants violated discrimination laws in California, New Jersey, Texas, and New York City by discriminating against him in access to air flights based on his disability of sensory processing disorder. The Court dismissed these claims because, other than enforcing the Mask Mandate, the role of the Federal Defendants in aiding and abetting the airlines was unclear.
Lastly, Plaintiff brought tort claims against Erinn Bostic, the Deputy Assistant Federal Security Director at the Department of Homeland Security. Bostic led the entire TSA security area at Terminal 1 at JFK Airport in Queens, New York. The Plaintiff claimed that Bostic was very rude and did not allow him to pass through security without wearing a mask. The Court held that while Bostic “may have jeopardized the goodwill of Plaintiff, it clearly did not rise to a level of a tort because Bostic did not owe Plaintiff a duty to provide a stress-free environment or provide him with a customer service system that would provide him with his relief of choice.”
August 16, 2024: The United States District Court of Columbia granted in part and dismissed in part the Defendants’ motion to dismiss in Marc Desmarais v. Jennifer M. Granholm. On September 9, 2021, President Biden issued an Executive Order that required all federal employees to receive the COVID-19 vaccine. Plaintiff, Marc Desmarais, worked as a Power System Dispatcher Supervisor of the Department of Energy’s Western Area Power Administration. He submitted a request for religious accommodation from the vaccine mandate in which he explained that getting the vaccine would violate his religious beliefs.
On December 27, 2021, Plaintiff was told that his accommodation request “would be processed in a specific order.” Following the response, the Plaintiff received emails from the Chief Administrative Officer and the DOE Chief of Staff regarding getting vaccinated and COVID-19 policies. On January 24, 2022, a federal court enjoined the President’s Executive Order requiring vaccination. In March 2022, the Department of Energy (DOE) instituted a “policy demanding religious persons submit to arbitrary COVID-19 testing every week, regardless of whether they have naturally acquired immunity or not.” According to Plaintiff, DOE told him that if this protocol is not followed, disciplinary action would be taken for him. The Plaintiff also claims that DOE had different return-to-work testing policies for religious and non-religious employees. Non-religious employees had to swear they tested negative for COVID-19, while religious employees “had to test in front of a proctor and on video.”
Plaintiff brought suit in May 2023 against the Secretary of the DOE, Jennifer Granholm in her official capacity, and DOE employees Jennifer Rodgers and Tarak Shah in their official capacities. The Plaintiff asserted claims based on religious discrimination, disparate treatment, and failure to accommodate.
The Court stated that a plaintiff must show the following to make a failure to accommodate claim: “(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement.” In this instance, the parties agree that Plaintiff’s religious beliefs conflicted with the vaccine mandate and that Plaintiff informed DOE about this conflict on September 14, 2021. Plaintiff argues that Defendants violated Title VII because they failed to respond to his accommodation request for at least 120 days and Plaintiff during this time feared being fired. The Court held that Plaintiff was never in fact subject to the vaccination requirement, so it was not possible for him to have been disciplined for failure to comply with it. Therefore, the Plaintiff failed to state a claim for failure to accommodate.
The Court also held that the Plaintiff failed to allege facts sufficient to show that Defendants discriminated against him by canceling his trip to Arizona, subjecting him to COVID-19 policies, or communicating with him regarding these policies. The Plaintiff’s canceled work trip was not necessarily the result of discrimination simply because it occurred at a similar time to the announcement of the COVID-19 policies. The Court determined it was not required to accept this conclusory allegation as true to decide the motion to dismiss. The Court found the testing policy did not plausibly affect the terms and conditions of Plaintiff’s employment because he was exempt while his application for accommodation was pending. The Court also found that two agency division-wide emails about a policy could not plausibly be characterized as “adverse employment actions.”
The Court did find that the Plaintiff plausibly alleged a claim for disparate treatment based on his allegations regarding the DOE’s decision to put his accommodation request “on hold” to prioritize requests for medical accommodations. The Court noted that the reason for treating medical and religious accommodation requests differently may be non-discriminatory, but that was a question for summary judgment and not for a motion to dismiss. Therefore, the Court denied the motion to dismiss for disparate treatment but granted the motion to dismiss for religious discrimination and failure to accommodate.
Darby Development Company, Inc. v. United States
On August 7, 2024, the U. S. Court of Appeals for the Federal Circuit, in Darby Development Company, Inc. v. U.S., reversed the decision of the U.S. Court of Federal Claims (the trial court) granting the U.S. Department of Justice’s (“DOJ”) motion to dismiss. Darby Development arose out of the eviction moratorium that the Centers for Disease Control (“CDC”) issued to help stop the spread of the COVID-19 virus. The case involved a group of plaintiffs who owned residential real estate that was subject to the eviction moratorium. The plaintiffs claimed that the government restriction on their ability to evict tenants who were not paying rent constituted “a physical taking of their property for public use. . . requiring just compensation under the Fifth Amendment’s Takings Clause.”
The Fifth Amendment provides that no “private property [shall] be taken for public use, without just compensation.” Stated in permissive terms, the federal government can take private property if it does so for a public purpose, and it provides just compensation to the owner. Court cases define two types of takings. One is the physical appropriation of property. A paradigmatic example might be taking private property to create a road. But it can also mean “burdening” a piece of property by requiring an owner to allow public utility cables to be buried on a part of their property. The second type of taking is a constructive or “regulatory” taking. A regulatory taking happens when a government regulation goes “too far” in restricting an owner’s use of their property, such that the impact of the regulation becomes a taking.
In Darby Development, the DOJ presented two arguments to the Court of Claims to support its motion to dismiss plaintiffs’ complaint. The first argument was that the CDC’s Order was unauthorized by the government. The DOJ’s second argument was that the CDC’s Order was not a taking because it “merely regulated the landlord-tenant relationship.” The question of “authorization” arose because the federal government enjoys sovereign immunity, which prohibits it from being sued. However, under the Tucker Act, Congress waived some of its sovereign immunity, allowing itself to be sued in certain kinds of cases, including claims under the Fifth Amendment Takings Clause. Yet, the Tucker Act does not waive sovereign immunity for actions that Congress has not authorized. Thus, the plaintiffs had to show that Congress authorized, either explicitly or by “necessary implication,” the CDC’s eviction moratorium for the Tucker Act to apply and for the Court of Claims to have authority to hear the case.
The Court of Claims agreed with the DOJ’s first argument, that Congress had not authorized the CDC Order, and dismissed the complaint on that basis without considering if CDC Order was regulation or a taking. The plaintiffs appealed the decision to the Federal Circuit Court.
On appeal, the Federal Circuit, like the Court of Claims, first addressed whether the CDC Order was “authorized” by the federal government. In doing so, however, the Federal Circuit conflated the immunity waiver provisions of the Tucker Act with a different part of the Tucker Act that describes the extent to which the U.S. government is liable for the harm caused by the actions of its employees.
The U.S. government can only act through the human beings it employs, and human beings make mistakes. If, while performing their government responsibilities, an employee makes a mistake, commits a crime, or does something that exceeds the authority of their job, the Tucker Act, in a separate provision from the immunity waiver, says that the U.S. government will be liable in the same way that a private party would be liable for the actions of their employees or agents. As a rule, that means that the U.S. government is "chargeable” for the things its employees do that are within the normal scope of their regular duties, even if the actions are wrongful in some way. Courts refer to this as “authorization” as well, but in response to a quite different question than whether Congress has authorized government action for purposes of the Tucker Act immunity waiver provision.
Although the Federal Circuit purported to answer the question whether Congress had authorized the CDC’s actions under the Public Health Services Act (“PHSA”) to determine if the government had waived its immunity from suit under the Tucker Act, the court analyzed the question as if it were considering the extent of the government’s liability for the wrongful acts of an employee. Under this analysis, the Federal Circuit concluded that the CDC’s Order was “authorized” because issuing the Order was within the normal scope of the CDC’s activities, and the kind of thing that should be “chargeable” to the government.
As the dissent noted, the majority opinion asked and answered the wrong question. These two distinct Tucker Act questions can look similar when, as in this case, the scope of authority in the enabling statute is unclear. Both questions require the court to compare a government actor’s actions to the authority granted. But the first question is jurisdictional. If Congress did not explicitly, or by necessary implication, authorize the actions taken, there is no government action, no waiver of immunity, and no jurisdiction to hear the case under the Tucker Act, and no need to consider what is within the normal scope of a government actor’s responsibilities.
Further, the Federal Circuit had no reason to be confused about what analysis to apply. The Supreme Court’s decision in Alabama Ass’n of Realtors, which interpreted the same provisions of the PHSA for the same purpose - deciding if Congress authorized the CDC’s eviction moratorium, said that the CDC’s “claim of expansive authority under [the PHSA] is unprecedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. . . Section 361(a) [of the PHSA] is a wafer-thin reed on which to rest such sweeping power.” But the Federal Circuit forged ahead with its misplaced analysis, notwithstanding the Supreme Court’s crystal-clear opinion that the PHSA did not authorize the CDC to issue an eviction moratorium, and reversed the Court of Claims on the tautological grounds that the CDC’s actions were authorized by Congress because the CDC’s actions were the kind of thing that it would normally do if it had Congressional authorization to do them.
It is difficult to read the majority opinion in Darby Development without concluding that the Federal Circuit wanted to get past the jurisdictional question to revive the plaintiffs’ claim that the eviction moratorium was a physical taking. This case seems to be yet another example of conservative legal movement organizations taking advantage of the chaos that the COVID-19 crisis caused to achieve long-standing doctrinal goals.
For decades, organizations like the Pacific Legal Foundation have challenged regulations, such as environmental use restrictions, claiming that they go “too far” in restricting owners’ use of their property and thus constitute regulatory takings. Even if Congress had authorized the CDC Order, as the dissent explained, courts have consistently deemed laws touching on the landlord/tenant relationship, such as zoning requirements and rent control or stabilization laws, to be regulations, not takings. Nevertheless, the Darby Development majority cited the “unprecedented” nature of the CDC Order as a response to an “unprecedented” crisis as cover for applying settled law in an unprecedented way.
If Darby Development survives appeal, anti-regulatory challengers will have two opportunities to attack regulations they do not like. They can challenge the validity of the regulations by seeking an injunction against its enforcement, as did the plaintiffs in Alabama Ass’n of Realtors. The dissent notes that the majority decision exposes the U.S. government to extraordinary financial obligations if an agency official exceeds the bounds of what Congress intended to fund. In essence, Darby Development would give courts, not Congress, the authority to decide whether to appropriate government funds to reimburse private parties to compensate them for the inconvenience of government regulations.
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