As Vaccination Regulation Litigation Erupts, the Fifth Circuit Stays Mandate Pending Expedited Briefing


 

BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.


 

On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.

The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.

The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.

The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.

The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.

Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.

Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.

In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.

All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.

The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.

Order of the United States Court of Appeals for the Fifth Circuit:

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021_

Challenges to the OSHA Emergency Temporary Standard (ETS):

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.) Petitioners Brief November 5, 2021

Commonwealth of Kentucky, et al. v. OSHA (6th Cir.) Petition Filed November 5, 2021

State of Missouri, et al., v. Joseph R. Biden, President of the United States, et al. (8th Cir.) Petition Filed November 5, 2021

State of Florida, et al. v. OSHA (11th Cir.) Petition Filed November 5, 2021

 

At the Hour of Our Death: Supreme Court to Consider Prisoner’s Plea for Prayer and Touch in Execution Chamber


Ramirez v.  Collier, Executive Director of the Texas Department of Criminal Justice, et al., No. 21-5592.  Oral argument set for November 9, 2021.   


The Supreme Court will soon consider whether Petitioner Ramirez, sentenced to death for a capital crime, may prevail in his claim that the State of Texas’ has violated the Religious Land Use and Religious Persons Act by refusing Ramirez’s request that his spiritual advisor not only be present in the execution chamber but also be permitted to pray aloud and to lay hands on Ramirez during the execution.

 

RLUIPA was enacted after the Supreme Court concluded that the Religious Freedom Restoration Act (RFRA) could not apply to the states.  Both statutes provide protections for religious exercise that may exceed the guarantees of the First Amendment, by shifting burdens of proof and persuasion and by permitting latitude in what may be considered a religious exercise.  

 

Thus a prisoner need not establish that a requested religious accommodation refers to a normative practice in any spiritual practice adhered to by the prisoner.  The state, however, must establish not only that its practices support a compelling government interest and that the state has employed the least restrictive means in furtherance of that goal.  

 

The presence of ministers in the death chamber has been permitted in Texas, in other states, and in the federal system.  At this time, Texas’ rules and regulations appear not to preclude such a presence, but interpretive guidance, some apparently issued in response to Ramirez’ requests, rule out vocalization and laying on of hands during and following the administration of lethal injections.

 

On its face Ramirez’s request appears compelling and its denial cruel.  What possible end could be served by denying a prisoner the solace of prayer and touch at death?  Safety and security, says the state.  

 

The state, through the Texas Department of Criminal Justice  opines that past procedures permitting religious attention at execution were supported by safety protocols permitting state employees, not volunteers, to provide religious support.  Sabotage and the creation of chaos in the execution room cannot be ruled out, the state argues, as such events are not without a basis in history and the likelihood of a disruptive occurrence is enhanced  if a volunteer minister would be so close to the prisoner that the disruption of the flow of medication or to removal of needles or restraints.  

 

Moreover,  the state argues that its practices and prohibitions respect the dignity of the prisoner by permitting audio surveillance from outside the execution chamber of the administration of lethal substances and the dying process.  Audible prayer would thwart that process, making it more likely that the state could not remediate the execution timely and enhancing the chance of an agonizing death.

 

Religious advocacy groups and scholars of religious freedoms have aligned with Ramirez, particularly in service of precluding interpretations of RLUIPA that would permit accommodations only if the state were affirmatively precluding a recognized religious practice.  

 

Several states have asserted that the states must be deferred to in fashioning acceptable execution chamber protocols.  The states fear a flood tide of litigation intended only to forestall executions, all in defiance of the Prison’ Litigation Reform Act, which would hamstring the state in administering sentences, thereby undermining the criminal justice system and principles of federalism. 

 

The United States has urged the Supreme Court to remand the case for resolution, particularly for further articulation of the parties’ interests.

 

Joining in advocating for bringing to a conclusion Ramirez’ litigation are the survivors of Carlos Ramos, who died after having been stabbed twenty-nine times by the Petitioner.   Ramos’ children, now grown, ask that the Court not be unmindful that at each stage of litigation the trauma of their loss is revived.  The Ramos family asks how it is that media attention appears to cast Ramirez as heroic, where their father was denied a sacramental death.  


JustLawful note:  This comment omits consideration of the exhaustion of remedies argument that is also presented in this case.

JustLawful Comment: Leaving aside the flood tides of dilatory claims, administration of justice, and federalism questions, which are not insignificant, it is difficult to believe that the requested ministerial presence and prayer and touch practices could not be accommodated through prison protocols protecting the interests of all.   “Accommodation” by definition suggests that each party yield — by inches if not by yards — to the other.  The parties seem disinclined toward such a perspective, yet the Court may order remand in furtherance of such a result, which would likewise aid the Court in avoiding unnecessary decisions.


Case Materials:

Brief of Petitioner Ramirez September 27, 2021

Brief for Respondents October 15, 2021

Reply Brief For Petitioner October 25, 2021

Ramirez v. Collier Joint Appendix Vol. I

Amicus Submissions in Support of Petitioner Ramirez

Amicus First Liberty Institute September 27, 2021

Amicus Scholars of the PLRA and Prison Grievance Systems September 27, 2021

Amicus The United States Conference Of Catholic Bishops September 27, 2021

Amicus Religious Liberty Scholars September 27, 2021

Amicus Becket Fund for Religious Liberty September 27, 2021

Amicus Christian Legal Society, et al. September 27, 2021

Amicus Spiritual Advisors and Former Corrections Officials September 27, 2021

Amicus Former Prison Officials September 27, 2021

Amicus Alliance Defending Freedom September 27, 2021

Amicus Protect the First Foundation September 27, 2021

Amicus Submissions in Support of the Respondents

Amicus Arizona, et al. in Support of Respondents October 15, 2021

Amicus Pablo Castro’s Children October 15, 2021

Amicus Criminal Justice Legal Foundation October 15, 2021

Amicus Submissions in Support of Neither Party

Amicus the United States September 27, 2021

Amicus Freedom from Religion Foundation et al. September 27, 2021

 

 

 

 

 

Supreme Court Holds Federal Officials May Be Liable Individually for Damages for Violations of the Religious Freedom Restoration Act


Tanzin, et al. v. Tanvir, et al., No. 19-71.  Opinion issued December 10, 2020.


The Religious Freedom Restoration Act (“RFRA”) was Congress’ attempt to re-introduce the highest standard of review for analyses of the constitutionality of laws that burden religion.  To survive a RFRA challenge, a measure that substantially burdens religious exercise must serve a compelling government interest by the least restrictive means. 

Prior to the enactment of RFRA, Employment Division v. Smith, 494 U.S. 872 (1990), a decision that remains both widely criticized and widely discussed, held that in general there is no constitutional offense to be found in generally applicable neutral laws that may incidentally burden religion. Enacted in 1993, RFRA was intended to restore the higher standard of review that Smith was perceived to have eroded.  

The scope of available remedies provided but not enumerated in RFRA is the subject of the case just decided, in which the plaintiffs objected to the government’s having placed them on “no fly” lists because, they asserted, they refused to act as informants for religious communities for the Federal Bureau of Investigation.  

Plaintiffs sued federal officials in their individual capacities.  Claims for injunctive relief were mooted by their removal from “no fly” lists, but plaintiffs would not abandon their claims for money damages.

The trial court that dismissed the claims for monetary damages was reversed by the United States Court of Appeals for the Second Circuit, which concluded that the language of RFRA providing “appropriate relief” to claimants and permitting actions against “the government” includes federal officials in their individual capacities.  The Supreme Court has agreed. 

Justice Thomas has proffered a textual analysis in support of the Court’s decision to reject the government’s argument that “government” as used in RFRA is limited to acts of officials in their official capacities, and that “government” cannot extend to the individual assets of federal employees which would be reached to satisfy judgments.

An ordinary and limited meaning of a word in a statute changes where Congress chooses to change the use of the word, Justice Thomas observed.  RFRA expands the definition of “government” to include officials or persons acting under color of law.

Officials are “persons” who are answerable under RFRA and judgments against them can be considered to be relief against the government.

Moreover, the “under color of law” language that appears in RFRA echoes the language of a principal civil rights statute, 42 U.S.C. Section 1983, which has been interpreted to apply to suits against officials in their official capacities. 

In general, “appropriate relief” may be fashioned according to context, but from common law forward money damages against officials have been available even where the sovereign itself is immune from suit.

In addition, although the 1988 Westfall Act precludes common law claims against federal officials, constitutional and statutory remedies are preserved.

Just as the language of 42 U.S.C. Section 1983 is an appropriate source of comparison for analysis of the scope of a cause of action under RFRA, so does the availability of money damages under Section 1983 serve as support for recognizing claims for money damages under RFRA. 

This is all the more apt, Justice Thomas states, where Section 1983 permits relief for violations of First Amendment interests.  In that RFRA was intended to return the law to the status quo ante Smith, monetary damages should be available in service of that end, to re-establish and to maintain a full panoply of relief.  

Congress did not limit redress under RFRA to equitable remedies, although it could have, and it is plain that such remedies will not be adequate, and hence not appropriate, Justice Thomas concluded, where costs have been incurred and losses occasioned which cannot be cured by any form of injunctive relief.

Neither the spectre of separation of powers concerns nor the desire for a presumption against monetary damages, as raised by the government, can transform those questions into matters for judicial intervention, the Court continued, where addressing such questions is the province of the legislative branch. 

With policy soundly committed to Congress, the Court noted that its decision does not in any way diminish the availability of qualified immunity defenses. 

JustLawful Observation:  The brevity of this opinion ought not be confused with the scope of its potential reach.  At a minimum, it will have all officialdom on its toes when it comes to matters impacting religion.

19-71 Tanzin v. Tanvir (12_10_2020)

Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

Contraception Coverage Redux: Supreme Court Excepts Religious Entities from Certification to Exemption from Mandate

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431; Donald Trump v. Pennsylvania, No. 19-454 (July 8, 2020).


Justice Thomas wrote for the Court.  Interim final rules relating to the Affordable Care act of 2010 (“ACA”) require that contraceptives be covered in employer sponsored health care plans notwithstanding that the ACA legislation is silent on this point.   The mandatory preventive care provisions of the ACA do not define what preventive care must be covered, leaving it to the Department of Health and Human Services (HHS) to provide specifics.

The Departments of Health and Human Services, Labor, and the Treasury have promulgated exceptions from the contraceptive mandate.   HHS excused itself from the Administrative Procedures Act’s (“APA”) notice and comment provisions, notwithstanding concerns expressed by religious employers.  HHS crafted an exemption for churches and their integrated associates.  

Several years passed in crafting refinements and self-certification for exemptions.  Insurers could provide contraceptive benefits separately to employees of self-certifying exempt entities. Religious entities such as the plaintiffs here objected to this scheme as involving unwanted participation in the contraceptive mandate.  

The Little Sisters of the Poor Saints Peter and Paul Home (“Little Sisters”) argued — but courts disagreed — that exemption self-certification presented just the kind of undue burden on the free exercise of religion that the Religious Freedom Restoration Act (“RFRA”) was intended to protect.  Petitions for certiorari from several religious entities were remanded when parties appeared to agree that arrangements for separate provision of contraception could be fashioned so as to not require action by the religious groups, and that this would be a satisfactory result.

At the same time, other challenges to the contraceptive mandate were mounted.  Private employer Hobby Lobby Stores prevailed in an as-applied RFRA challenge, causing HHS to redraft its rules. 

HHS was initially unable to draft measures sufficient to satisfy religious objections while fulfilling the contraceptive mandate’s promise to employees.  After several years, HHS promulgated the rules in issue in this case, which expanded the definition of exempt employers, and which relieved employers from participation in the accommodation process, although that process remained available. 

A federal court issued a national injunction against HHS on the date the rules were to have taken effect.  Subsequent to Third Circuit review, the Supreme Court granted certiorari.

The Supreme Court, engaging in textual analysis, observed that the ACA conferred unbridled discretion on HHS to regulate required, or excluded, health care for women without defining what that care would include or exclude.  Where Congress could have limited this unfettered discretion but did not do so, the Supreme Court would not supply new additions to the statute.  Where no party raised an overbreadth challenge to the delegation, the Supreme Court would not disturb it.

Because the Court concluded that HHS’ discretion was conferred by Congress, the Court did not address whether RFRA compelled or authorized HHS’ action, but the Court noted that it was not improper for HHS to consider RFRA in fashioning regulations, particularly in light of the proceedings relating to to the contraceptive mandate. 

The Court concluded that HHS met the substance of notice requirements and had accepted comments.  The Court refused to require “open mindedness” of HHS, finding no basis for such a requirement in the APA.

Justice Alito, with Justice Gorsuch, concurred.  Justice Alito would extend the Court’s opinion to find that RFRA requires the exemption, thereby precluding arbitrary and capricious challenges on remand.  Justice Alito urged that the Court find finality in its present decision rather than requiring another round of remand. 

HHS’ Health Resources and Services Administration (HRSA) was given responsibility under ACA to determine what preventive services should be made available.  HRSA determined that contraception should be available, at first exempting only churches but later, following objections and litigation before the Supreme Court, expanding that exception and modifying procedures.

Justice Alito opined that RFRA applies to all government activity and as such, HRSA had to administer the contraceptive mandate in accordance with RFRA.  This is particularly so because the Supreme Court held in Hobby Lobby that the contraceptive mandate may substantially burden religion.  

Justice Alito did not think that Congress has fashioned contraceptive coverage in a way that suggests that Congress considered contraception to be a compelling interest, particularly as the question whether it ought to be provided at all was delegated to the administrative agency.  So many people and situations are exempted that it is difficult to perceive that a compelling interest in the provision of contraceptives exists.  The circular administrative exceptions themselves indicate that the mandate did not concern a compelling interest. 

The issue is whether there is a compelling need for coverage, not convenience.  Even if there were a compelling interest, the least restrictive means test must be satisfied.  Congress could create cost-free contraception if it wished without burdening the consciences of religious entities.  

Although the government must legislate using the least restrictive means to advance compelling interests, the government need not adhere to least restrictive means principles in creating accommodations.  The woman who works for an entity that exempts itself from the contraceptive mandate is not burdened by the employer’s exemption: “she is simply not the beneficiary of something that federal law does not provide.”  (Concurrence, Slip Op. at 18.)

Justice Kagan, with Justice Breyer, concurred in the judgment.  Justice Kagan agreed with the idea of authority to create exemptions but questioned whether reasoned decision making is in place, and notes that the lower courts can address this.  The conclusion that authority was present made it unnecessary to address whether any determination was arbitrary and capricious and that needs to be done.  Reasoned decision making is absent where the scope of the exemption does not fit the problem to be addressed.  The revised rule exempts those who might have no objection to the self-certification accommodation, and fails to protect employees’ access to contraception.  The extension of the exemption to publicly traded entities is questionable as it is difficult to locate conscience interests in such companies.  Why more in addition to religious exemptions were included is not clear, and RFRA does not cover “moral” objections. 

Justice Ginsburg, joined by Justice Sotomayor, dissented.  Justice Ginsburg laments what she perceives to be the Court’s abandonment of balancing beliefs so that no interests are overwhelmed, and fears that the Court has demolished the protections that the Women’s Health Amendment to the ACA, leaving “working women to fend for themselves…” (Dissent, Slip Op. at 2.)

Neither the Free Exercise Clause or FRFA required this result.  The Court has abandoned the accommodations intended to ensure that all interests and objections could be addressed.  Unlike the majority, Justice Ginsburg found no authorization for a blanket exemption in the ACA.  Where heretofore it was agreed that any religious exemption to the contraception mandate would preserve access to contraception, the exemption the Court now embraces places an undue burden on women.  Directing women to seek assistance from available government programs will only further cripple already overburdened programs.  

This process would force women to abandon known caregivers and if forced to pay out of pocket would likely cause women to pay for more expensive coverages.

Even if the self-certification process is sincerely believed to be unduly burdensome, that is not true as a matter of fact or law, as the government need not conduct itself in a way that comports with religious views.  Self-certification relieves religious employers of their objections to obligations and transfers the obligation to the insurer:  this both accommodates the religious employer and facilitates the government’s interest in women’s health care.

The obligation to provide contraception arises from the ACA, not from submission of self-certification of exemption based on religious objection.  A blanket exemption is nowhere consistent with any statute or regulation.  

Little Sisters of the Poor v. Pennsylvania No. 19-431 and Trump v. Pennsylvania No. 19-454 July 8, 2020