Vaccine Order
Vaccine Order
Vaccine Order
1 enrolling for the Spring 2022 semester.1 Gold, who is currently enrolled as an
2 undergraduate at the University, alleges that he has previously contracted COVID-
3 19 and recovered. Compl., ECF No. 1, ¶ 12. Gold alleges that he is currently
4 unable to enroll in in-person classes for the spring semester because of the Policy.
5 Id. Gold seeks an injunction preventing the University from enforcing the Policy
6 against him because he alleges that his prior infection gives him superior
7 immunity to COVID-19 than vaccinated individuals. Id. ¶ 10.
8
9 On November 9, 2021, Gold filed his complaint seeking declaratory and
10 injunctive relief based on the alleged unconstitutionality of the Policy. Compl.,
11 ECF No. 1. On November 19, 2021, Gold filed an emergency application for a
12 temporary restraining order and an order to show cause why a preliminary
13 injunction should not issue. ECF No. 10. On December 2, 2021, the case was
14 assigned to this Court. See ECF No. 26.
15
16 II. LEGAL STANDARD
17
18 Courts look to substantially the same factors when determining whether to
19 issue a temporary restraining order or a preliminary injunction. See Stuhlbarg
20 Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 (9th
21 Cir. 2001). The plaintiff has the burden to establish that (1) he is likely to succeed
22 on the merits, (2) he is likely to suffer irreparable harm if the preliminary relief is
23 not granted, (3) the balance of equities favors the plaintiff, and (4) the injunction is
24 in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 5, 20
25 (2008).
26
27
1
See Student COVID-19 vaccine requirement, University of Nevada, Reno,
28 https://www.unr.edu/coronavirus/vaccine/requirements.
2
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1 In the Ninth Circuit, the Winter factors may be evaluated on a sliding scale:
2 “serious questions going to the merits, and a balance of hardships that tips sharply
3 toward the plaintiff can support issuance of a preliminary injunction, so long as
4 the plaintiff also shows that there is a likelihood of irreparable injury and that the
5 injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632
6 F.3d 1127, 1134-35 (9th Cir. 2011). “To reach this sliding scale analysis, however,
7 a moving party must, at an ‘irreducible minimum,’ demonstrate some chance of
8 success on the merits.” Global Horizons, Inc. v. U.S. Dep’t of Labor, 510 F.3d
9 1054, 1058 (9th Cir. 2007) (citing Arcamuzi v. Cont’l Air Lines, Inc., 819 F.2d
10 935, 937 (9th Cir. 1987)).
11
12 III. DISCUSSION
13
14 A. Likelihood of Success on the Merits
15
16 The Court begins by considering the most important factor in the
17 preliminary injunction analysis, whether it is likely that Gold’s complaint will
18 succeed on the merits. See Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015).
19 Gold brings three causes of action: (1) violation of substantive due process rights
20 protected by the Fourteenth Amendment, Compl. ¶¶ 116-129; (2) violation of the
21 Equal Protection Clause of the Fourteenth Amendment, id. ¶¶ 130-139; and (3)
22 violation of the Fourth Amendment, id. ¶¶ 140-144. The Court begins by
23 considering Gold’s likelihood of success on the Fourteenth Amendment claims
24 before turning to the Fourth Amendment claim.
25
26 i. Fourteenth Amendment Claims
27 The Due Process Clause “provides heightened protection against
28 government interference with certain fundamental rights and liberty interests.”
3
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4
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1 suspect class). Accordingly, the Court applies rational basis review to Gold’s
2 Equal Protection claim.
3
4 The rational basis review test is functionally the same under substantive due
5 process and the Equal Protection Clause. See Gamble v. City of Escondido, 104
6 F.3d 300, 307 (9th Cir. 1997). Substantive due process only requires a rational
7 relationship between the challenged policy and a legitimate governmental
8 objective. See Brach v. Newsom, 6 F.4th 904, 924 (9th Cir. 2021). Under the
9 Equal Protection Clause, if there is no suspect class at issue a policy “need only
10 rationally further a legitimate state purpose to be valid.” Minn. State Bd. for Cmty.
11 Colls. v. Knight, 465 U.S. 271, 291 (1984) (internal quotations omitted). “Given
12 the standard of review, it should come as no surprise [courts] hardly ever strike[]
13 down a policy as illegitimate under rational basis scrutiny.” Trump v. Hawaii, 138
14 S. Ct. 2392, 2420 (2018).
15
16 The two-tiered rational basis inquiry first asks whether the challenged law
17 has a legitimate purpose, then whether the challenged law promotes that purpose.
18 See Erotic Serv. Provider Legal Educ. and Research Project v. Gascon, 880 F.3d
19 450, 457 (9th Cir. 2018). The Defendants’ stated purpose of mitigating the spread
20 of COVID-19 and preventing severe illness, hospitalizations, and deaths is clearly
21 a legitimate purpose.2 See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.
22 Ct. 63, 67 (2021) (“Stemming the spread of COVID-19 is unquestionably a
23 compelling interest.”). The Policy’s references to governmental guidance and
24 scientific research shows that the University considered relevant data before
25
2
See Letter from Lisa Scherych, Administrator, Division of Public and Behavioral Health,
26
to the Honorable Steve Sisolak, Governor of the State of Nevada (Aug. 20, 2021),
27 https://gov.nv.gov/uploadedFiles/govnewnvgov/Content/News/Press/2021_docs/2021-08-20_BO
H_Regulation.pdf (recommending immediate adoption of the emergency regulation requiring
28 students at Nevada universities and colleges to be fully vaccinated against COVID-19).
5
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1 deciding to implement the Policy. See, e.g., Compl. ¶ 27. While Gold cites to
2 numerous studies that he alleges show that the Policy is misguided, that does not
3 mean that his challenge is likely to succeed. Under rational basis review, courts
4 “do not require that the government's action actually advance its stated purposes,
5 but merely look to see whether the government could have had a legitimate reason
6 for acting as it did.” Wedges/Ledges of California, Inc. v. City of Phoenix, Ariz.,
7 24 F.3d 56, 66 (9th Cir. 1994) (emphasis in original).
8
9 Because the Policy easily survives rational basis review, the Court finds that
10 Gold has not shown that his Fourteenth Amendment claims are likely to succeed
11 on the merits.
12
13 iv. Fourth Amendment Claim
14
15 Gold also alleges that the Policy violates his Fourth Amendment rights by
16 infringing on his privacy. Compl. ¶¶ 140-44. The only case law he cites to support
17 that proposition that Fourth Amendment rights are violated is inapposite. See
18 Anderson v. Taylor, No. 04-74345, 2005 WL 1984438 (E.D. Mich. Aug. 11, 2005)
19 (finding mandatory blood draws for lipid testing as a condition of employment a
20 violation of privacy interests). Nasal swab testing for COVID-19 does not create
21 an intrusion under the skin, does not involve any genetic testing, and there is no
22 use of the sample for law enforcement purposes. Accordingly, the Court finds that
23 Gold is unlikely to succeed on his Fourth Amendment claim. See Streight v.
24 Pritzker, No. 3:21-cv-50339, 2021 WL 4306146 (N.D. Ill. Sept. 22, 2021)
25 (denying preliminary injunction because plaintiff had not shown that Fourth
26 Amendment challenge to university policy requiring vaccination or saliva testing
27 to attend in-person classes was likely to succeed on the merits).
28
6
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1 IV. CONCLUSION
2
3 For the foregoing reasons, the Court DENIES the emergency request for a
4 temporary restraining order and declines to issue an order to show cause.
5
6 IT IS SO ORDERED.
7
8 DATED: December 3, 2021
9
10 ________________________________________
11 HONORABLE JAMES V. SELNA
12 UNITED STATES DISTRICT JUDGE
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