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Ninth Circuit:
District Court Judge Did Not Follow Instruction on Remand in Vaccine Mandate Case
Issuance of Preliminary Injunction Is Ordered
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed, for the second time, an order denying a motion for a preliminary injunction in a case challenging, on religious grounds, the City and County of San Francisco’s COVID-19 vaccine mandate, this time ordering the judge to issue the requested relief.
Both denials were by Senior District Court Jeffrey S. White of the Northern District of California.
A party seeking a preliminary injunction must establish four things—a likelihood of success on the merits and of irreparable harm absent the relief, that the balance of equities tip in the moving party’s favor, and that granting the request would serve the public interest.
In yesterday’s memorandum opinion signed by Circuit Judges Consuelo Callahan, Patrick Bumatay, and Senior District Court Judge Susan R. Bolton of the District of Arizona, sitting by designation, the court took issue with White’s evaluation, on remand following an earlier reversal, saying:
“The district court did not analyze Appellants’ likelihood of success on the merits despite this Court’s instruction to do so. Even so, ‘[l]ikelihood of success on the merits is a threshold inquiry and is the most important factor.’….It should not have been ignored.”
The jurists declared:
“Appellants remain constructively terminated—forced to choose between their religious beliefs and their careers. Given that the…purpose of a preliminary injunction is to preserve the ‘status quo ante litem,’ relief is warranted here.”
Religious Exemptions Denied
Appealing the denial were Selina Keene and Melody Fountila, former employees of the City and County of San Francisco (“CCSF”) who were denied religious exemptions from the 2021 requirement that all workers be vaccinated. Both plaintiffs asked for religious accommodation to the requirement that they be vaccinated, raising objections to the shots—which they say were derived from aborted fetal tissue—based on their Christian beliefs.
According to the plaintiffs, then-Mayor London Breed denied the requests without explanation.
In March 2022, Keene and Fountila filed a complaint against CCSF, and related parties, asserting that the employer violated Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (“FEHA”) by failing to accommodate their religious beliefs.
They moved for a preliminary injunction requiring CCSF to accommodate them by allowing them to work remotely or in-person with appropriate personal protective equipment (“PPE”) and regular testing.
District Court’s View
On Sept. 23, 2022, White denied the motion, saying:
“Not only do the assertions by Plaintiffs fly in the face of scientific consensus, their claims fail to recognize well-settled law allowing for compulsory vaccination as a condition for employment….Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies….Personal preferences are not beliefs protected by Title VII or FEHA. Accordingly, Plaintiffs have not established that they are likely to prevail on the merits of their claims.”
In May 2023, the Ninth Circuit reversed, finding that “the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate” and “[r]emand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry.”
On remand, White again denied the plaintiffs relief, saying that “[t]he Court finds that Plaintiffs have again failed to carry their burden to establish that they will suffer irreparable harm or that the public interest weighs in their favor.” White’s order did not address whether the plaintiffs were likely to prevail on their claims.
Ninth Circuit’s View
Addressing the plaintiffs’ likelihood of succeeding on the merits of their claims, the panel noted that “[b]oth Title VII and FEHA require reasonable accommodations for [bona fide] religious beliefs [which conflict with an employment duty], unless doing so would impose an ‘undue hardship’ on the employer.”
Turning to the plaintiffs’ claims, the jurists explained:
“Here, Appellants possessed genuine religious beliefs which conflicted with taking the COVID-19 vaccine, requested religious exemptions, and were constructively fired for their noncompliance. As CCSF concedes, Appellants ‘retire[d] to avoid termination.’ This occurred despite alternative accommodations being available to CCSF. CCSF could have allowed remote work for the duration of pandemic, allowed in-person work with PPE and regular COVID-19 testing, or limited Appellants’ contact with unvaccinated members of the public.”
They continued:
“[T]he record does not reflect that CCSF seriously considered any religious accommodation. CCSF has failed to show these proposed measures imposed an ‘undue hardship’ given their minimal cost and considering that during the relevant time period Appellants’ worksite hosted thousands of appointments with members of the public, regardless of their vaccination status….Thus, Appellants have demonstrated a strong likelihood of success on the merits under both Title VII and FEHA.”
Irreparable Harm
Callahan, Bumatay, and Bolton said that “[t]he district court abused its discretion in concluding that Appellants failed to show irreparable harm” and “did not analyze irreparable harm under state law.”
The judges acknowledged that the temporary loss of income does not generally amount to “irreparable injury,” but explained:
“Appellants’ coerced decision between their faith and their livelihood imposed emotional damage which cannot now be fully undone….[A] crisis of conscience is evidenced here as Appellants specifically described being ‘distraught’ and ‘depressed’ due to the resulting stigma of having their ‘career[s]…pulled out from underneath’ them. This is unsurprising given that they had dedicated decades of their careers to CCSF….The circumstances surrounding Appellants’ termination constitute irreparable harm.”
Turning to the balance of equities and the public interest, the judges opined:
“[T]he district court did not properly consider the balance of the equities and the public interest. Enforcing anti-discrimination statutes is in the public’s interest under both California and federal law….
“Furthermore, as CCSF’s vaccine requirement is no longer in place, there is no burden on CCSF for Appellants’ noncompliance.”
They declared that “we reverse the district court’s denial of the preliminary injunction and remand with directions to the district court to grant the preliminary injunctive relief consistent with this memorandum disposition.”
The case is Keene v. City and County of San Francisco, 24-1574.
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