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finding that United is not a state actor, so it is not governed by First Amendment requirements
Summary of this case from O'Hailpin v. Hawaiian Airlines, Inc.Opinion
Case No. 3:21-cv-1050-TJC-LLL
2021-12-30
Thomas ANDERSON, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. UNITED AIRLINES, INC., a Delaware Corporation, Defendant.
Kenneth Wayne Ferguson, Ferguson Law PA, Fort Lauderdale, FL, for Plaintiffs. Christopher R.J. Pace, Michelle Hogan, Jones Day, Miami, FL, Alexander V. Maugeri, Pro Hac Vice, Jones Day, New York, NY, Donald J. Munro, Pro Hac Vice, Jones Day, Washington, DC, Jordan M. Matthews, Pro Hac Vice, Jones Day, Chicago, IL, for Defendant.
Kenneth Wayne Ferguson, Ferguson Law PA, Fort Lauderdale, FL, for Plaintiffs.
Christopher R.J. Pace, Michelle Hogan, Jones Day, Miami, FL, Alexander V. Maugeri, Pro Hac Vice, Jones Day, New York, NY, Donald J. Munro, Pro Hac Vice, Jones Day, Washington, DC, Jordan M. Matthews, Pro Hac Vice, Jones Day, Chicago, IL, for Defendant.
ORDER
TIMOTHY J. CORRIGAN, United States District Judge
Fifty-six putative class action plaintiffs (collectively, "Anderson") seek to represent a putative class composed of all United Airlines, Inc. employees and to halt United's Covid-19 vaccination program. The present motion is Anderson's Second Emergency Motion for Preliminary Injunction (the "Motion"). Doc. 28. The operative complaint is the Third Amended Verified Class Action Complaint ("TAC"). Doc. 27. United has filed a Response to the Motion. Doc. 30. The Court held a telephonic hearing on the Motion on December 8, 2021, the record of which is incorporated by reference. Docs. 38, 40.
I. BACKGROUND
A. Anderson's Class Action Complaint
Anderson filed his original Complaint on October 18, 2021. Doc 1. He informed the Clerk via phone that he would be filing a motion for a temporary restraining order ("TRO") the same day, as well as several times thereafter. He did not. Instead, he filed three amended complaints which added class action allegations and changed named plaintiffs. Docs. 4, 25, 27. He filed a motion for a TRO on November 1, 2021. Doc. 13. The Court denied the motion for failure to comply with the Local Rules. Doc. 14. Anderson filed the TAC and the Motion on November 17, 2021, a month after the original Complaint, and a day after the Court's deadline to file a renewed motion for preliminary injunction. Docs. 24, 27, 28.
Anderson's claims center around United's Covid-19 vaccine policies towards its employees. On August 27, 2021, United's Chief Executive Officer emailed the company instructing all employees to provide proof of vaccination by September 27, 2021. Doc. 27 ¶ 149. United also accepted applications for religious or medical accommodations from the mandate, which had to be submitted by August 31, 2021. Id. ¶¶ 157–59. It sent postcards to all employees who had not uploaded proof of vaccination informing them that individuals who were not vaccinated and had not received an accommodation would be separated from the company. Id. ¶ 156. On September 9, 2021, according to the TAC, United began informing employees that those who received religious or medical accommodations would be placed on unpaid leave for up to 72 months beginning on October 2, 2021. Id. ¶¶ 166–67. While the TAC is not entirely clear, it appears to allege that United later extended the date upon which individuals were required to be vaccinated to October 15, 2021.
The TAC states that "[p]laintiffs were then told that any employee whose accommodation request was denied must receive the vaccine by September 27, 2021, or be terminated; which was recently extended through October 15, 2021." Doc. 27 ¶ 167.
In another case against United, on behalf of a much narrower putative class of individuals whose accommodation requests were denied by United, the Northern District of Texas issued a TRO that prevented United from implementing its Covid-19 vaccine policies until October 26, 2021, to allow for briefing on pending motions in that case. Doc. 66, Sambrano v. United Airlines, Inc., Case No. 4:21-cv-1074-P, 2021 WL 4760645 (Oct. 12, 2021 N.D. Tex.). The Sambrano court then extended its TRO until November 8, 2021. Doc. 95, Sambrano, 4:21-cv-1074-P. On November 8, 2021, the Texas court denied Sambrano's motion for preliminary injunction, thus permitting United's vaccine policy to go into effect. Sambrano v. United Airlines, Inc., No. 4:21-CV-1074-P, 570 F.Supp.3d 409 (N.D. Tex. Nov. 8, 2021), reconsideration denied, No. 4:21-CV-1074-P, 2021 WL 5445463 (N.D. Tex. Nov. 19, 2021) ; upheld by Sambrano v. United Airlines, Inc., No. 21-11159, 19 F.4th 839, 840 (5th Cir. Dec. 13, 2021). Thus, the Motion in this case was filed on November 17, 2021, nine days after the Texas-imposed TRO lapsed and United's policy went into effect. Doc. 28.
At 223 pages, the TAC is verbose and contains much irrelevant, inflammatory, and conclusory content. Doc. 27. It makes numerous conclusory allegations concerning the safety of Covid-19 vaccines, including that "vaccinations not work [sic], but they are causing more harm than good," killing tens of thousands and harming millions. Id. ¶¶ 87–89. It alleges that the vaccine violates plaintiffs’ rights because natural immunity is stronger than vaccinated immunity, that the vaccine is deadly or harmful, that the FDA violated its own drug approval policy, and that better therapies are available, including Ivermectin, hydroxychloroquine, and zinc. Id. at 11–31. The TAC alleges that hundreds of thousands have been sickened or killed by the vaccine itself, id. ¶¶ 87–88, that PCR tests are ineffective and inaccurate, id. ¶ 105, and that Covid-19 vaccines are especially harmful to airline pilots, who are generally fit and healthy, id. at 119–24. It alleges that the Covid-19 mRNA vaccines are in fact gene therapies, id. at 31–37, and that United's high bar for religious exemptions and stricter masking policies for the unvaccinated amount to discrimination, id. at 72. It alleges that among the measures United has considered taking to permit individuals who received vaccine accommodations to return to work have included "vaccine identification badges—similar to the gold-stars those in camps had to wear in the [sic] 1930's Germany." Id. ¶ 168. Finally, the TAC alleges that United is a state actor because the company required vaccination following governmental signals, demonstrating that United is stepping into the government's role because the government is unable to mandate vaccines. Id. at 3–4; 97–115.
In reproducing Anderson's allegations, the Court, of course, is not adopting or agreeing with them.
The TAC is also an impermissible shotgun pleading: each count incorporates each of the preceding counts. See Weiland v. Palm Beach Cty. Sheriff's Off., 792 F.3d 1313, 1321 (11th Cir. 2015). The TAC does not state the fifty-six named plaintiffs’ current or former positions at United, explain how they specifically have been harmed by United's policies, or identify whom among them has or has not been vaccinated. The TAC proposes a class of "slightly less than 67,000 employees," id. ¶ 213, consisting of:
According to the TAC, some named plaintiffs have already been vaccinated: "Plaintiffs have not been inoculated with gene therapies or the Covid vaccines at issue and do not want to be; or alternatively, have been coerced into taking it or [sic] against their will." Doc. 27 ¶ 6. Anderson's counsel stated that approximately three of the fifty-six named plaintiffs have received vaccinations. Doc. 40 at 10:24–11:3.
all United employees who have and/or continue to be subjected to United's discriminatory, unlawful, and unconstitutional employment practices described in this complaint including the COVID-19 vaccine mandate; PCR testing; proof of vaccination or vaccine passports; and/or mask policies.
Id. ¶ 211.
The pleading deficiencies in the TAC alone make establishing entitlement to a preliminary injunction very difficult. However, the Court proceeds to consider the Motion.
B. Motion for Preliminary Injunction
The Motion asks the Court to immediately enjoin United from enforcing any of its Covid-19 mitigation measures. Doc. 28 at 2. Specifically, Anderson asks the Court to enjoin United from enforcing its vaccination policy, requiring employees to provide proof of vaccination, implementing its policy requiring masks and regular PCR tests for unvaccinated employees in non-customer facing positions, and sending printed material to those who have not been vaccinated. Id. He argues that United does not face any risk of potential harm from halting these activities, and that plaintiffs therefore need not put up a security or bond. Id. at 2–4.
In its own words, the Motion asks the Court to:
enjoin all persons at United, including its officers, agents, servants, employees, and attorneys; as well as, any and all other persons in active concert or participation with United, from (a) enforcing the unconstitutional and unlawful COVID-19 vaccine mandate; and to enjoin or order the immediate cessation of the (b) EUA PCR testing requirements; (c) proof of COVID-19 inoculation or vaccine passports; (d) EUA mask policies; and (e) the unlawful dissemination of Plaintiffs’ private, medical information.
Doc. 28 at 2.
The Motion argues that irreparable injury to plaintiffs and the putative class stems from the vaccines killing thousands of people. Id. at 22. Anderson argues that United violated Title VII by not providing meaningful religious accommodations for vaccine objectors. Id. at 21–22. Anderson also alleges that Congress and the executive have delegated power to United to the point that it has become a "state actor and co-conspirator." Id. at 19. As a co-conspirator with the government, Anderson alleges, United has violated constitutional rights. Id. Anderson argues that United's First Amendment violation (accepting that United is a state actor) "unquestionably constitutes irreparable injury" for the purposes of a preliminary injunction, citing Roman Cath. Diocese of Brooklyn v. Cuomo, ––– U.S. ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) (granting injunction blocking New York's Covid-19 restriction on more than ten people gathering in places of worship when commercial establishments did not have similar restrictions as disproportionate and in violation of the First Amendment) (per curiam). Anderson alleges that United has violated the Nuremberg Code, a set of medical principles for ethical human experimentation laid out in an opinion at the 1945 Nuremberg Trials, by forcing employees to get vaccinated or lose their livelihoods—in effect, removing their ability to consent. Doc. 28 at 17. Finally, the Motion argues that the benefit to plaintiffs of not being killed by a Covid-19 vaccine outweigh any harm or detriment to the public interest. Id. at 24–25.
The Motion argues that of the TAC's fourteen counts, the Genetic Information Non-Discrimination Act ("GINA") provides the strongest basis for Anderson's success, as mRNA vaccinations allegedly alter one's genes, and PCR testing constitutes an illegal test of an individual's genetic information. Id. at 11–15. At the hearing, Anderson confirmed that the Motion relied on the counts in the TAC arising under alleged violations of GINA (Counts I and II), 42 U.S.C. § 12112 (the Americans with Disabilities Act) (Count III), Title VII of the Civil Rights Act (Count IV), the Constitution and 42 U.S.C. § 1983 (Counts VII–XII), and the Nuremberg Code (Count XIII). Doc. 40 at 12:22–13:12.
C. United's Response
United's Response contains a "Counter-Statement of Facts" that puts forth its own exhibits and expert reports as well as filings and orders from other courts to demonstrate the vaccine's effectiveness and the legality of its Covid-19 vaccine policy. Doc. 30 at 9–12. Relying on a declaration from Kirk Limacher, Vice President of Human Resource Services at United, the Response explains United's Covid-19 vaccine policies from its perspective. Docs. 30 at 10–12; 30-1. It explains that named plaintiff Anderson, if he is a pilot based in Newark, New Jersey "received an accommodation, exempting him from vaccination ." Docs. 30 at 11; 30-1 ¶ 48. The Response states that other named plaintiffs either received accommodations, withdrew their requests, or had requests denied for failure to engage in the process or for filing after United's deadline. Doc. 30 at 11–12. United argues that there is no legal basis for granting the Motion, because Anderson has not shown likelihood of success on the merits or irreparable harm, his putative class is not certifiable, and an injunction would be against the balance of the equities and public interest. Doc. 30 at 15, 25–27.
Anderson's counsel clarified that Anderson is a Florida-based pilot who works out of Newark, New Jersey, and was on unpaid leave at the time of the hearing. Doc. 40 at 57:5–9.
II. DISCUSSION
A. Legal Standard
A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). The "[p]laintiff must demonstrate that it has satisfied its burden as to all four elements ... in order for the Court to issue a preliminary injunction." Sapphire Consulting Servs. LLC v. Anderson, No. 6:20-CV-1724-CEM-LRH, 2021 WL 1053276, at *3 (M.D. Fla. Feb. 12, 2021) (citing Horton v. Maersk Line, Ltd., 603 F. App'x 791, 797 (11th Cir. 2015) and Henry v. Nat'l Hous. P'ship, No. 1:06-CV-008-SPM, 2006 WL 8443138, 2006 U.S. Dist. LEXIS 104140 (N.D. Fla. Sept. 19, 2006) ); United States v. Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983). In the Eleventh Circuit, "a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to the four requisites." McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (quotation marks omitted). Because United's vaccine policy has already been fully implemented, the Court would be required to enter a mandatory preliminary injunction. "Mandatory preliminary relief, which goes well beyond simply maintaining the status quo, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party." Powers v. Sec'y, Fla. Dep't of Corr., 691 F. App'x 581, 583 (11th Cir. 2017) (alterations and citation omitted).
B. Success on the Merits
On a motion for preliminary injunction, the Court normally "begins with the element of substantial likelihood of success on the merits." Sapphire, 2021 WL 1053276, at *3. Here, the Court undertakes a brief analysis of the merits to determine whether Anderson has shown a substantial likelihood of success at this stage.
Anderson does not cite to specific legal authority to support his argument that he will succeed on the overall merits of his claims. See Doc. 28 at 10–11. Anderson simply quotes a Supreme Court case interpreting the Center for Disease Control's authority to impose an eviction moratorium, which stated that "[t]he applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing." Doc. 28 at 11; Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., ––– U.S. ––––, 141 S. Ct. 2485, 2488, 210 L.Ed.2d 856 (2021). However, the Alabama case against the Department of Health and Human Services is completely different from this case against a private employer and does not support his argument.
1. Anderson has not demonstrated that he has exhausted his administrative remedies.
Anderson failed to file claims with the Equal Employment Opportunity Commission ("EEOC"), as is required before filing claims under Title VII, the ADA, and GINA. Doc. 30 at 16; Ross v. Blake, 578 U.S. 632, 639, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016) (stating that "mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account"). Anderson argues that filing a claim with the EEOC would have been futile because the EEOC's investigative process would take too long, and because it lacks the authority to resolve these issues. Doc. 28 at 12. He states "the EEOC has not spoken out against any of the actions referenced; and has taken the position that they do not and will not interfere with or prevent employers from following the guidelines or suggestions of the CDC...." Id. at 12–13. Presumption of failure does not excuse any attempt to exhaust required administrative remedies when required by law. 42 U.S.C. § 2000e-5(e)(1) (Title VII); 42 U.S.C. § 2000ff-(6)(a)(1) (GINA) ; Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) ("Before instituting a Title VII action in federal district court, a private plaintiff must file an EEOC complaint against the discriminating party and receive statutory notice from the EEOC of his or her right to sue the respondent named in the charge."); Fry v. Muscogee Cty. Sch. Dist., 150 F. App'x 980, 981 (11th Cir. 2005) ("Before filing suit under the ADA, a plaintiff must exhaust her administrative remedies by filing a charge with the EEOC."); Johnson v. Golfcrest Healthcare Ctr., No. 18-61928-CIV, 2019 WL 1900968, at *4 (S.D. Fla. Apr. 29, 2019) (finding that GINA claims were not sufficiently presented to the EEOC). "Filing a timely EEOC charge is a non-jurisdictional but necessary prerequisite to bringing a discrimination suit." Williams v. Cadence Bank NA, No. 5:16CV266-MCR-GRJ, 2017 WL 10844958, at *2 (N.D. Fla. Feb. 28, 2017).
2. Anderson's GINA, ADA, and Title VII Claims (Counts I, II, III, and IV) are not substantially likely to succeed.
GINA prevents any employer from "discharg[ing]" an employee on the basis of their genetic information, or from "request[ing], requir[ing], or purchas[ing] genetic information" from any employee. 42 U.S.C. § 2000ff-1(a)(1), (b). While Anderson alleges that Covid-19 vaccinations alter an individual's DNA, United has provided rebuttal evidence attached to its Response. Doc. 30-3 at 16 (stating in an expert report of Dr. Carlos Del Rio, that "mRNA vaccines do not change or interact with / alter your DNA in any way"). The EEOC itself has stated that administration of a Covid-19 vaccine "does not implicate Title II of GINA." U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION , What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last visited December 28, 2021). Anderson has not shown that it is substantially likely that he will prove that Covid-19 vaccinations and PCR tests constitute genetic discrimination.
Anderson's ADA claim is equally unavailing. The ADA permits testing that is "job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). Anderson has failed to show a substantial likelihood that United's testing is not consistent with business necessity.
Anderson argues that United has violated Title VII by failing to treat class members’ religious beliefs equally. Doc. 28 at 21. He argues that placing unvaccinated employees on unpaid leave is "unreasonable, open ended, punitive, and retaliatory in nature," and "United never meaningfully engaged in the interactive process" required. Id. at 22. In Barrington v. United Airlines, Inc., also a suit against United over its Covid-19 vaccination policy, the court found that United's measures, including unpaid leave, may have constituted a "reasonable accommodation" under the Act. No. 21-CV-2602-RMR-STV, 566 F.Supp.3d 1102, 1110-11 (D. Col. Oct. 14, 2021). In Sambrano, conversely, the court noted that that plaintiffs’ arguments regarding Title VII violations were "compelling and convincing at this stage," but found that plaintiffs had not shown irreparable harm at the preliminary injunction stage. 570 F.Supp.3d at 419. While the Court is not ruling on the merits of Anderson's claims at this stage of the litigation, Anderson has not shown that he is substantially likely to succeed on his Title VII claim.
3. Anderson has not demonstrated that United is a state actor sufficiently to support a substantial likelihood of success on his constitutional and section 1983 claims (Counts VII–XII).
Anderson alleges that United "has ceased to exist and has become a state actor and co-conspirator for the reasons provided and noted throughout the Complaint." Doc. 28 at 19. The TAC alleges that United's CEO has echoed government statements, saying "we'll follow whatever the government tells us to do," and that government loans and grants encouraged United to enforce the government's vaccine mandate. Doc. 27 ¶¶ 195–97.
Only in rare circumstances can a private party be viewed as a "state actor" for section 1983 purposes. The Eleventh Circuit recognizes three tests for establishing state action by what is otherwise a private person or entity: the public function test, the state compulsion test, and the nexus/joint action test.
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). "[T]he public function test shows state action only when private actors are given powers (or perform functions) that are traditionally the exclusive prerogative of the State." Id. at 1131 (quotation marks omitted). To the extent Anderson alleges that United has taken on a public function under this test, his allegations do not rise to a sufficiently plausible level. Under the state compulsion test, state acts compel a private actor to comport with relevant laws, rendering the private actor a state actor. Id. at 1130–31. Anderson has not alleged that United is compelled by law to impose its Covid-19 measures. Under the nexus/joint test, "the government has so far insinuated itself into a position of interdependence with the private party that it was a joint participant in the enterprise." Id. at 1131 (quotations and alterations omitted). While Anderson has alleged interdependence and joint participation, going so far as to call United a "co-conspirator" with the government, he has not made allegations that rise to a plausible level. Doc. 28 at 19; see Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.") (internal quotation marks omitted). Anderson does not plausibly allege that United is a state actor, rather than a private business. Therefore, he is not substantially likely to succeed on any constitutional or § 1983 claims.
4. Anderson has not provided grounds under which the Nuremberg Code provides a cause of action (Count XIII).
The Motion argues that United has violated the Nuremberg Code, but fails to demonstrate at this stage how a violation of the Nuremberg Code would give rise to this court's jurisdiction. Doc. 28 at 15–17. Anderson's Motion argues that United violated the Nuremberg Code by requiring vaccinations, masking, and PCR testing without providing information as required by the "EUA [Emergency Use Authorization] statute," Doc. 28 at 16–17. United States courts do "give some redress for violations of clear and unambiguous international human-rights protections." Jesner v. Arab Bank, PLC, ––– U.S. ––––, 138 S. Ct. 1386, 1389, 200 L.Ed.2d 612 (2018). This redress extends to a "private right of action for violations of international law only where there is a statute expressing Congress's intention to permit private suits." Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1232, n.7 (11th Cir. 2004). The cases Anderson cites in the Motion all refer to claims under the Alien Tort Statute ("ATS"). Doc. 28 at 16; Jesner, ––– U.S. ––––, 138 S. Ct. 1386, 1408, 200 L.Ed.2d 612 (declining to apply ATS to foreign corporations absent congressional authorization in a multi-concurrence case); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980) (determining that the ATS confers federal subject matter jurisdiction over allegations of torture, even if committed abroad); Sosa v. Alvarez-Machain, 542 U.S. 692, 725, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (holding that under the ATS, "courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with ... specificity"); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 187 (2d Cir. 2009) (holding that allegations that American company Pfizer, Inc. conducted non-consensual drug testing that maimed or killed multiple children in Nigeria when effective, free treatment was available was "sufficient to state a cause of action under the ATS for a violation of the norm of customary international law prohibiting medical experimentation on human subjects without their consent.").
The first flaw in Anderson's Nuremberg Code argument is that claims under the ATS are available to non-citizens to obtain jurisdiction in U.S. courts. 28 U.S.C.A. § 1350 ("The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States" (emphasis added)). Anderson has not alleged that any plaintiffs are not U.S. citizens. "As an American citizen, [Anderson] cannot rely on the [Alien Tort Statute] and there is no alternative statement from Congress expressing its intent to recognize this cause of action." Ungaro-Benages, 379 F.3d at 1232.
The Court does note that Count XIV of the TAC, which is not put forward as grounds for preliminary injunction, alleges violations of the "Torture Convention," citing "TVPA § 2(a)," as well as the "Convention Against Torture." Doc. 27 at 217, ¶ 396. If Anderson is referring to the Torture Victims Protection Act, this act "is broader than the ATS in that the TVPA allows citizens, as well as aliens, to seek remedy in federal court for official torture." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263–64 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). Unlike the ATS, the TVPA "create[s] an express cause of action for victims of torture and extrajudicial killing," rather than for other violations of customary international law. Jesner, 138 S. Ct. at 1389.
Second, the principles of the Nuremberg Code have been incorporated into domestic law. Abdullahi, 562 F.3d at 182. The Nuremberg Code is a set of principles that a panel of judges trying Nazi defendants at the Nuremberg Trials laid out as points for ethical medical experimentation, and thus the Code is not binding law but rather "evidence of a general practice accepted as law" among nations. Abdullahi, 562 F.3d at 176–77, 183–84 (citing Article 38 of the Statute of the International Court of Justice). "Congress mandated patient-subject consent in drug research in 1962. In response, the FDA promulgated its first regulations requiring the informed consent of human subjects." Id. at 182 (internal citations omitted). "United States law requires that, as a predicate to FDA approval of any new drug, both American and foreign sponsors of drug research involving clinical trials, whether conducted here or abroad, procure informed consent from human subjects." Id. If Anderson, as U.S. citizen filing suit against a U.S. company, had a valid claim based on the precepts of the Nuremberg Code, it is difficult to imagine a case in which the claim would not be actionable under domestic law.
Third, as other courts have held, Covid-19 vaccine mandates are simply not equivalent to the forced experimentation on concentration camp victims that led to the writing of the Nuremberg Code.
Plaintiffs offer no international law materials that vaccine mandates, particularly during a worldwide pandemic, for an FDA-authorized vaccine that has undergone significant clinical trials and safety evaluation by the FDA is considered a forced or coerced medical "experiment." ... Plaintiffs here do not contend that they are being forced to be part of the clinical trials for the Pfizer-BioNTech Vaccine or that they are being forcibly injected while being physically held against their will. Instead, they argue a very different context—a challenge to a vaccine mandate ... to take an FDA-authorized vaccine at the risk of losing their employment. This simply is nowhere near the same as Nazi doctors performing experiments on victims held against their will in concentration camps, as was the subject of a portion of the Nuremberg Trials.
Johnson v. Brown, No. 3:21-CV-1494-SI, 567 F.Supp.3d 1230, 1247-48 (D. Or. Oct. 18, 2021) ; see also Bridges v. Houston Methodist Hosp., No. CV H-21-1774, 543 F.Supp.3d 525, 528 (S.D. Tex. June 12, 2021) ("Equating the injection requirement to medical experimentation in concentration camps is reprehensible.").
Anderson has not shown a substantial likelihood of success on his Nuremberg claim.
Because the present Motion is not a motion to dismiss, the Court is not currently dismissing this count.
C. Irreparable Harm
"Where a plaintiff has not carried his burden as to any one of the elements required for a preliminary injunction, it is unnecessary to address the remaining elements." Henry, 2006 WL 8443138, *1 n.1. While the Court has already explained why Anderson fails to demonstrate substantial likelihood of success on the merits, it will briefly discuss irreparable harm. Anderson argues that irreparable harm stems from the fact that "once the vaccine has been administered, it cannot be undone." Doc. 28 at 22. Anderson says that absent a court injunction, "[p]laintiffs will suffer serious, imminent, irreparable physical, emotional, and psychological harms" because "these inoculations have killed thousands of people." Id.
That vaccination cannot be undone is true; once an individual is injected with a vaccine, there is no way to remove it from their body. However, United's policy does not force anyone to get a vaccine. As Judge Pittman in the Northern District of Texas explained, the argument that United forces people to take the vaccine:
conflates the potential harm arising from United's accommodation policy with the personal difficulty of deciding to decline the vaccine. United exempted Plaintiffs from the vaccine mandate; Plaintiffs were not required to violate their religious beliefs. United's employees claimed they faced an impossible choice: get the vaccine or endure unpaid leave. But they chose the latter. Their dispute thus centers on United's response to their choice.
Sambrano, 570 F.Supp.3d at 415. In line with Judge Pittman in Sambrano, and others, the Court concludes that regardless of the merits of Anderson's claims, his non-speculative losses are economic and therefore reparable. See Barrington, 566 F.Supp.3d at 1113 (denying motion for preliminary injunction in a case against United based, in part, on the fact that "claims that her home will go into foreclosure, that her career will be destroyed, and that no future employer will ever be willing to hire her are speculative," and could be reimbursed as economic damages).
Anderson points to two cases that he claims are examples of other courts issuing injunctive relief preventing vaccination mandates. However, both of these cases were against federally funded universities found to be potentially violating constitutional rights and are therefore unavailing in this suit against United, a private company. Cf. Dahl v. Board of Trustees of Western Michigan University, 15 F.4th 728 (6th Cir. 2021) ; Magliulo v. Edward Via College of Osteopathic Medicine, No. 3:21-CV-2304, 555 F.Supp.3d 284 (W.D. La. Aug. 17, 2021).
Anderson argues that United infringes on its employees’ constitutional rights with the vaccine mandate, citing Obama for America v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (upholding preliminary injunction when plaintiffs alleged infringement on their right to vote and stating: "When constitutional rights are threatened or impaired, irreparable injury is presumed. A restriction on the fundamental right to vote therefore constitutes irreparable injury.") (citations omitted). Anderson argues that the violation of the right to privacy is per se irreparable. The Eleventh Circuit has stated that "chilled free speech and invasions of privacy, because of their intangible nature, could not be compensated for by monetary damages; in other words, plaintiffs could not be made whole." Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (finding that "[a]n injury is ‘irreparable’ only if it cannot be undone through monetary remedies."). United is not a state actor, as explained above, and so First Amendment requirements do not apply to it. And plaintiffs are free to not disclose their vaccination status; by simply not informing United whether or not they have been vaccinated, they would likely be treated as unvaccinated employees.
Anderson also states that the Eleventh Circuit has found that Title VII violations are likewise irreparable, citing Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (holding that the district court should have held an evidentiary hearing on plaintiff's motion for preliminary injunction to stop retaliation against plaintiff for the same claim and stating that "courts are to presume irreparable harm in Title VII cases"). The Eleventh Circuit subsequently noted that Baker "evinces an intent to limit the holding to the facts of the case," namely where retaliatory Title VII harm is alleged. McDonald's, 147 F.3d at 1314 ; see also Storves v. Island Water Ass'n, Inc., No. 2:10-CV-274-FTM-36SPC, 2010 WL 11622686, at *6 (M.D. Fla. Nov. 3, 2010) (noting that the court need not hold an evidentiary hearing in a Title VII retaliation motion asking for a preliminary injunction because there were two additional grounds upon which to deny the motion in addition to irreparable harm). Here, the Court held a hearing and determined that first of all, Anderson has not demonstrated a likelihood of success on the merits, and therefore the Motion fails. Second, for the reasons above, the presumption of irreparable harm has been overcome, as any harms Anderson experiences are economic and reparable.
According to the TAC, United employees who refuse to be vaccinated are either terminated or placed on unpaid leave. They lose wages and possibly experience and time in service. These harms, while regrettable, are traditionally reparable in money damages if liability is established. The alleged economic damages do not constitute irreparable harm sufficient to require a mandatory preliminary injunction.
III. CONCLUSION
Anderson has not shown a substantial likelihood that he will succeed on the merits of his claims or irreparable harm. On these grounds alone the preliminary injunction motion should be denied. Thus, the Court need not address the two remaining factors.
The Court has considered the supplemental authorities Anderson has filed since the hearing, but they do not alter the Court's analysis. Docs. 37, 39, 42, 43.
Accordingly, it is hereby
ORDERED:
1. Plaintiffs’ Second Emergency Motion for Preliminary Injunction (Doc. 28) is DENIED .
2. United Airlines, Inc. shall respond the Third Amended Complaint (Doc. 27) no later than February 4, 2022 .
DONE AND ORDERED in Jacksonville, Florida the 30th day of December, 2021.