On July 26, 2021, America’s Frontline Doctors (AFLDS) and two students, Carly Powell, and Deborah Choi, (collectively, Plaintiffs) filed a complaint in federal district court against the Regents of the University of California – the governing board of the University of California system (UC System) – and various officials of the UC System, challenging the requirement imposed by the UC System that all students attending a UC System school for fall 2021 be fully vaccinated against COVID-19, with exceptions provided on medical, disability, or religious grounds, deferrals are given based on pregnancy, and deferrals of up to 90 days after a COVID-19 diagnosis or treatment.
The complaint alleges five causes of action arising from the UC System’s COVID-19 vaccination policy as it applies to students. The first and second causes of action are for declaratory and injunctive relief for violation of the Fourteenth Amendment right to bodily integrity. These causes of action are based on Plaintiff’s contention that Powell and Choi, who are students enrolled in a UC System school and who previously had and “recovered swiftly from Covid-19 with natural immunity,” have not provided their informed consent to COVID-19 vaccination. The Plaintiffs also contend that the COVID-19 vaccination is “a form of experimental genetic manipulation,” that the vaccine is “ineffective, and dangerous,” and that the vaccine mandate is “forced medical experimentation.” The Plaintiffs note their belief that the “FDA’s classification of Covid-19 vaccination (as emergency use or approved) is not determinative of the experimental status of the vaccination.”
The third cause of action is for injunctive relief for violation of the Fourteenth Amendment right to freedom from state-created danger. This cause of action is based upon the Plaintiffs’ contention that by implementing the COVID-19 vaccination requirement, the UC System is placing Powell and Choi in a “position of actual, particularized danger based upon the deliberate indifference of [the UC System] to a known and obvious danger of Covid-19 vaccine injury.” The Plaintiffs contend that the COVID-19 vaccination “carries both known and unknown risk of harm to Plaintiffs and others, such as serious illness and death.” The Plaintiffs further assert that the UC System is rejecting science by not allowing Powell, Choi, and other students who have recovered from COVID-19 to demonstrate with the assistance of their doctors that they possess natural immunity to COVID-19 beyond 90 days.
The fourth and fifth causes of action are discrimination based on the medical condition and genetic status in violation of California’s Unruh Civil Rights Act and California Government Code Section 11135. California’s Unruh Civil Rights Act prohibits discrimination by business establishments based on the medical condition and genetic information, among other protected categories, while California Government Code Section 11135 prohibits discrimination in a program or activity conducted, operated, administered, or funded by the state, or that receives financial assistance from the state based on the medical condition and genetic information, among other protected categories. This cause of action is based upon the Plaintiffs’ assertion that the UC System’s COVID-19 vaccine mandate discriminates against unvaccinated students by denying them full and equal access to the UC System campuses on the basis of their medical conditions and genetic information.
On July 30, 2021, the court issued an order denying the Plaintiffs’ application for a temporary restraining order that would have prevented the UC System from enforcing its COVID-19 vaccine policy to the extent that it rejected pre-screening for natural immunity to COVID-19 beyond 90 days pending a final decision on the merits of the case by the court. In order to succeed in securing the temporary restraining order, the Plaintiffs were required to show that (1) they are likely to succeed on the merits of their claim; (2) they are likely to suffer irreparable harm in the absence of emergency relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest.
The court found that the Plaintiffs were unlikely to succeed on the merits of their first and second claims because there is clearly a rational basis for the UC System to institute the policy requiring COVID-19 vaccination, including for individuals who previously had COVID-19. The court similarly found that the Plaintiffs were unlikely to succeed on the merits of their third claim because evidence from the CDC recommends – based on data from clinical trials – vaccination for those who have contracted and recovered from COVID-19, which supports the UC System’s conclusion that “requiring vaccination is far from an “unreasonable risk” or a “known and obvious danger.”” The court also found that Plaintiffs were unlikely to succeed on the merits of their fifth and sixth claims under California law because the Eleventh Amendment bars suits for damages or injunctive relief against a state, an arm of the state, its instrumentalities, or its agencies, and also prohibits actions against state officials in their official capacities unless the state waives its immunity and consents to suit, which it did not do here.
The court also found that the Plaintiffs failed to establish that AFLDS, Powell, or Choi would suffer irreparable injury in the absence of a temporary restraining order. AFLDS had only shown the some of its physician members may provide care to UC System students who disagree with the Policy, which is not enough to show harm, much less irreparable harm, to AFLDS. Further, contrary to the Plaintiffs’ assertions, Powell and Choi are not being forced to be vaccinated. Instead, they are being given a choice to get vaccinated, seek an exemption (if applicable), or transfer elsewhere. The court noted that precedent has established that [a] delay in collegiate or graduate education isn’t typically irreparable harm.”
The court next found that the balance of equities and the public interest weighs heavily against the requested relief. The court noted that vaccines “address a collective enemy, not just an individual one,” and the Plaintiffs’ decision to refuse vaccination does not affect them alone. The court found that the public health and safety concerns surrounding COVID-19 and the well-being of the campus community and the general public outweighed the Plaintiffs’ interest in refusing the COVID-19 vaccine.
Therefore, the court denied the Plaintiffs’ application for a temporary restraining order preventing the UC system from enforcing its COVID-19 vaccine mandate.
America’s Frontline Doctors, et al. v. Kim A. Wilcox, et al (Case No. EDCV 21-1243 JGB (kkx)) Order DENYING Plaintiffs’ Ex Parte Application for Temporary Restraining Order (July 30, 2021).
NOTE:
While a final decision on the merits of the Plaintiffs’ claims is pending, the decision by the district court is instructive of what the final decision may be. Also worth noting, is on August 11, 2021, the Ninth Circuit Court of Appeals denied the Plaintiffs’ request that the court intervenes on their behalf.