Valdez v. Lujan Grisham ( 2022 )

Appellate Case: 21-2105 Document: 010110696466 Date Filed: 06/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
TALISHA VALDEZ, on behalf of herself
and others similarly situated; JENNIFER
BLACKFORD, on behalf of herself and
others similarly situated,
Plaintiffs - Appellants,
v. No. 21-2105
(D.C. No. 1:21-CV-00783-MV-JHR)
MICHELLE LUJAN GRISHAM, officially (D. N.M.)
and individually, acting under the color of
law; DAVID SCRASE, officially and
individually, acting under the color of law,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and McHUGH, Circuit Judges.
_________________________________
In this interlocutory appeal, Jennifer Blackford, a nurse, challenges the district
court’s order denying a preliminary injunction against a public health order requiring
hospital and congregate care facility workers in New Mexico to be vaccinated against
COVID-19. On appeal, Ms. Blackford supports her request for a preliminary
injunction with three claims arising from the United States Constitution: a Contracts
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
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Clause claim, a substantive due process claim, and an equal protection claim.
Because we lack jurisdiction to consider the preliminary injunction based on
Ms. Blackford’s Contracts Clause claim and the district court did not abuse its
discretion by concluding she was not likely to succeed on the merits of her
substantive due process and equal protection claims, we affirm the denial of the
preliminary injunction.
I. BACKGROUND
In 2019, experts discovered the emergence of a novel coronavirus known as
SARS-CoV-2. This virus causes a dangerous respiratory disease in humans known as
Coronavirus Disease 2019 or COVID-19. COVID-19 has spread rapidly throughout
the world since then. In March 2020, the first case of COVID-19 in New Mexico was
diagnosed, and Governor Michelle Lujan Grisham issued Executive Order 2020-004
declaring a state of public health emergency. The first vaccines for COVID-19
became available in the United States in late 2020.
On August 17, 2021, Acting Secretary of the New Mexico Department of
Health, David R. Scrase, M.D., issued the Public Health Emergency Order Requiring
All School Workers Comply with Certain Health Requirements and Requiring
Congregate Care Facility Workers, Hospital Workers, and Employees of the Office of
the Governor Be Fully Vaccinated (the “PHO”). As relevant to this appeal, the PHO
requires hospital workers and congregate care facility workers to be fully vaccinated
against COVID-19 unless they have a qualifying medical condition such that
immunization would endanger their health or they are entitled to an accommodation
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related to a disability or a sincerely held religious belief. The next day,
Ms. Blackford’s employer, Presbyterian Healthcare Services (“Presbyterian”),
implemented a private requirement for all Presbyterian employees to be vaccinated
against COVID-19. Colleen Heild, Presbyterian requires vaccines for entire
workforce of 13,000, Albuquerque Journal (Aug. 18, 2021, 10:03 PM),
https://www.abqjournal.com/2420650/presbyterian-requires-vaccines-for-entire-
workforce-of-13000-ex-pnm-is-asking-all-staff-to-get-vaccinated-or-be-tested-
weekly.html
Ms. Blackford worked at Presbyterian Hospital and was therefore subject to
the PHO’s vaccine requirements. Ms. Blackford is opposed to receiving a COVID-19
vaccine, and she alleges she does not qualify for the exemptions. According to
Ms. Blackford, the PHO requires affected employers to terminate employees in her
position. Thus, on August 19, Ms. Blackford brought a complaint against Governor
Lujan Grisham and Dr. Scrase (together, the “Appellees”) challenging the
constitutionality of the PHO.1 As relevant here, Ms. Blackford alleges the PHO
1
Talisha Valdez also joins Ms. Blackford as a plaintiff in this action.
Ms. Valdez challenges the PHO because it required 2021 New Mexico State Fair
attendees to be fully vaccinated, and Ms. Valdez was opposed to being vaccinated but
had plans to show animals at the State Fair. The 2021 New Mexico State Fair took
place in September 2021, and Appellees removed the State Fair vaccine requirement
from the PHO in December 2021. Amended Public Health Emergency Order
Requiring All School Workers Comply with Certain Health Requirements and
Requiring Congregate Care Facility Workers, Hospital Workers, and Employees of
the Office of the Governor Be Fully Vaccinated and Receive Booster Vaccines, New
Mexico Dep’t of Health Office of the Secretary (Dec. 2, 2021),
https://cv.nmhealth.org/wp-content/uploads/2021/12/PHO120221.pdf. Thus,
Ms. Valdez’s request for a preliminary injunction related to the State Fair vaccine
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violates (1) the Contracts Clause, (2) substantive due process, and (3) the Equal
Protection Clause.2 She also requested a preliminary injunction against the
enforcement of the PHO. The district court denied the request for a preliminary
injunction because Ms. Blackford was not likely to succeed on the merits of her
claims, she had not shown irreparable harm, and the balance of harms and the public
interest weighed against the preliminary injunction. Ms. Blackford appeals the denial
via an interlocutory appeal pursuant to 28 U.S.C. § 1292.
requirement is moot, and we do not consider it on appeal. Fleming v. Gutierrez, 785
F.3d 442, 445 (10th Cir. 2015). The Amended PHO does not render Ms. Blackford’s
request for a preliminary injunction moot, however, because it continues to require
hospital workers and congregate care facility workers to be vaccinated. ARJN #3 v.
Cooper, 517 F. Supp. 3d 732, 742 (M.D. Tenn. 2021) (holding a COVID-19-related
executive order was not moot after it was amended because “the challenged
provisions . . . have been repeated” in the amended order); see also Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68–69 (2020) (holding a request for an
injunction against a regulation limiting how many people can attend religious
services based on the number of COVID-19 cases in an area was not moot after the
restriction was lightened because there was a constant threat that the strict restrictions
would go into effect again).
2
Ms. Blackford also alleges the PHO violates the Federal Food, Drug, and
Cosmetic Act (the “FDCA”), procedural due process, and the New Mexico
Constitution. On appeal, however, Ms. Blackford does not argue the FDCA or
procedural due process claims support her request for a preliminary injunction, and
she does not provide argument or support related to her claim under the state
constitution. See Appellants Br. at 11 (arguing only that “the District Court’s
declination of supplemental jurisdiction [of the state constitutional claim] based upon
the denial of preliminary injunction based upon an incorrect reading of the law is . . .
not proper”). As such, Ms. Blackford has waived these arguments, and we do not
consider these three claims in this appeal. Sawyers v. Norton, 962 F.3d 1270, 1286
(10th Cir. 2020).
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II. DISCUSSION
On appeal, Appellees contend this court lacks jurisdiction to review the
preliminary injunction order because Ms. Blackford lacks standing. Ms. Blackford
disagrees and argues the district court abused its discretion when it denied the
preliminary injunction. We begin with the jurisdictional issue and then turn to the
merits of the preliminary injunction.
A. Jurisdiction
Article III of the United States Constitution “limits the jurisdiction of federal
courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S.
149, 157 (2014) (quoting U.S. Const., Art. III, § 2). “The doctrine of standing gives
meaning to these constitutional limits by ‘identify[ing] those disputes which are
appropriately resolved through the judicial process.’” Id. (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). “To establish Article III standing, a plaintiff
must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the
injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be
redressed by a favorable decision.’” Id. at 157–58 (quoting Lujan, 504 U.S. at 560–
61). “[S]tanding is assessed as of the time of filing of the complaint.” Hansen v.
Harper Excavating, Inc., 641 F.3d 1216, 1224 (10th Cir. 2011). It is Ms. Blackford’s
burden to show she has standing to sue on each of her claims. Lujan, 504 U.S. at 561.
We also lack jurisdiction to consider claims that are moot. Citizen Ctr. v.
Gessler, 770 F.3d 900, 906 (10th Cir. 2014). “Mootness usually results when a
plaintiff has standing at the beginning of a case, but, due to intervening events, loses
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one of the elements of standing during litigation.” WildEarth Guardians v. Pub. Serv.
Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012). We analyze whether a plaintiff
has standing or whether a claim is moot as to “each form of relief sought.” Prison
Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019) (quotation
marks omitted) (considering whether the action is moot as to each form of relief
sought); Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019) (considering
whether the plaintiff has standing as to each form of relief sought). For purposes of
this appeal, we limit our analysis to whether Ms. Blackford has standing or whether
her claims are moot in relation to her request for injunctive relief. We make no
judgment about whether she has standing as to other forms of relief not before us in
this interlocutory appeal.
Ms. Blackford argues the PHO violates the Contracts Clause of the United States
Constitution because it negatively impacts her employment contract with Presbyterian by
requiring her to be vaccinated against COVID-19 to continue her employment.
Ms. Blackford also argues this negative impact constitutes an injury for standing
purposes.
Importantly, however, the PHO is not the only COVID-19 vaccine mandate that
applies to Presbyterian employees. The day after the PHO went into effect, Presbyterian
announced its own, broader vaccine requirement for all employees. Later, the Center for
Medicare and Medicaid Services (“CMS”) also issued an interim final rule with comment
period (“IFC”) requiring staff at Medicare and Medicaid-certified hospitals to be
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vaccinated. 86 Fed. Reg. 61555, 61570–71 (Nov. 5, 2021).3 We take judicial notice of the
IFC, and we take judicial notice that Presbyterian is Medicare and Medicaid-certified and
thus governed by CMS and the IFC. See id.; Presbyterian Healthcare Services,
Medicare.gov, https://www.medicare.gov/care-compare/details/group-
practice/9234041708?addressId=NM871245901RI4100XSEXX500&state=NM#Provider
DetailsAffiliatedCliniciansGroupContainer (listing Presbyterian Healthcare Services as a
Medicare and Medicaid-certified group practice); see also Renewable Fuels Ass’n v.
EPA, 948 F.3d 1206, 1258 (10th Cir. 2020), vacated on other grounds by HollyFrontier
Cheyenne Ref’g, LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172 (2021) (“Information on
a government website is subject to notice if, among other things, it is not subject to
reasonable factual dispute and part of a source whose accuracy cannot reasonably be
questioned.” (internal quotation marks omitted)); United States v. Coffman, 638 F.2d 192,
194 (10th Cir. 1980) (“Judicial notice must be taken of relevant contents of the Federal
Register.”). If we were to grant a preliminary injunction against the PHO today,
Ms. Blackford would still be required to be vaccinated to work at Presbyterian because of
Presbyterian’s own requirement and the IFC. Thus, the injury associated with
Ms. Blackford’s Contracts Clause claim is not redressable by enjoining the PHO.
Ms. Blackford, however, contends Presbyterian implemented its private
vaccine requirement only because of the PHO. Accordingly, Ms. Blackford asserts
Presbyterian’s vaccine requirement would be lifted if we granted a preliminary
3
The Supreme Court upheld the IFC in Biden v. Missouri, 142 S. Ct. 647, 653
(2022).
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injunction against the PHO. Even if that is true, Ms. Blackford’s request for a
preliminary injunction based on the Contracts Clause claim is nevertheless moot
because the IFC went into effect after Ms. Blackford brought her complaint and
independently requires Presbyterian employees to be vaccinated against COVID-19.
In either case, we do not have jurisdiction to grant injunctive relief based on her
Contracts Clause claim.
As for Ms. Blackford’s substantive due process and equal protection claims, the
alleged injury is that she will no longer be able to work as a nurse anywhere in New
Mexico so long as the PHO is in effect and she remains unvaccinated. This is an
exaggeration of the effect of the PHO, which, as relevant to Ms. Blackford, requires only
“hospital workers [and] congregate care facility workers” to be fully vaccinated against
COVID-19. App. at 33. Under the PHO, Ms. Blackford could remain unvaccinated and
work as a nurse in a doctor’s office or as a home health care nurse or anywhere else that
is not a hospital or a congregate care facility. Nevertheless, the limitation of
Ms. Blackford’s ability to work in a hospital or congregate care facility in New Mexico
without being vaccinated is an actual injury to Ms. Blackford caused by the PHO.
Moreover, there is no evidence in the record that all hospitals and congregate care
facilities in New Mexico have private vaccine requirements or are governed by CMS and
the IFC. Enjoining the PHO would therefore lift the COVID-19 vaccine requirement and
allow Ms. Blackford to work at a hospital or congregate care facility in New Mexico
other than Presbyterian without being fully vaccinated.
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In sum, Ms. Blackford has standing for injunctive relief based on her substantive
due process and equal protection claims, but we lack jurisdiction to review the district
court’s denial of injunctive relief based on the Contracts Clause claim. Therefore, we
review the denial of the preliminary injunction only as it relates to Ms. Blackford’s
substantive due process and equal protection claims.
B. Preliminary Injunction
To receive a preliminary injunction, a plaintiff must establish four elements:
“(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless
the injunction is issued; (3) that the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4) that the injunction, if
issued, will not adversely affect public interest.” Diné Citizens Against Ruining Our
Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotation marks omitted).
“We review the district court denial of a preliminary injunction for an abuse of
discretion.” Id. “An abuse of discretion occurs where a decision is premised on an
erroneous conclusion of law or where there is no rational basis in the evidence for the
ruling.” State v. EPA, 989 F.3d 874, 883 (10th Cir. 2021) (quotation marks omitted).
We begin by reviewing the district court’s conclusion that Ms. Blackford is not
substantially likely to prevail on the merits of the substantive due process and equal
protection claims.
Although substantive due process and equal protection are distinct
constitutional doctrines, the “substantive analyses” of the two doctrines often
“converge.” Powers v. Harris, 379 F.3d 1208, 1215 (10th Cir. 2004).
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Ms. Blackford’s challenges to the district court’s conclusions on these two claims are
identical, so we consider them together.
Substantive due process “provides heightened protection against government
interference with certain fundamental rights and liberty interests.” Id. (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). Equal protection requires a
state to provide equal treatment to those who are similarly situated, “with its ‘central
purpose [being] the prevention of official conduct discriminating on the basis of race
[or other suspect classifications].’” Id. (quoting Washington v. Davis, 426 U.S. 229,
239 (1976)). Under both doctrines, courts begin by determining the proper level of
scrutiny to apply.
For a substantive due process claim challenging a legislative-type action, we
first ask whether the government action implicates a fundamental right. Halley v.
Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018).4 If so, we apply strict scrutiny to the
government action. Maehr v. U.S. Dep’t of State, 5 F.4th 1100, 1109 (10th Cir. 2021)
(Lucero, J., concurring). Likewise, for an equal protection claim, we apply strict
scrutiny to a government action that “target[s] a suspect class or involve[s] a
4
Alternatively, when plaintiffs raise a substantive due process claim
challenging an executive action, we ask instead whether the government action
“shocks the judicial conscience.” Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir.
2018). The district court applied the fundamental-right test because the PHO is “akin
to a legislative action.” App. at 209 (quoting ETP Rio Rancho Park, LLC v. Grisham,
522 F. Supp. 3d 966, 1029 (D.N.M. Feb. 26, 2021)). The district court did not abuse
its discretion by applying the fundamental-right test because the PHO “attempt[s],
through policy, to achieve a stated government purpose,” like a legislative act. Abdi
v. Wray, 942 F.3d 1019, 1028 (10th Cir. 2019).
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fundamental right.” Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th
Cir. 2002). If a heightened level of review does not apply, courts consider whether
the government action is rationally related to a legitimate government purpose. Id.(including rational-basis review in the context of equal protection); Maehr, 5 F.4th at
1109 (including rational-basis review in the context of substantive due process).
Ms. Blackford argues the district court abused its discretion on the substantive
due process and equal protection claims by concluding the PHO does not implicate
fundamental rights and applying rational-basis review. We hold the district court did
not abuse its discretion in these ways. We also hold the district court did not abuse its
discretion by concluding the PHO was likely rationally related to a legitimate
government purpose.
1. Fundamental Rights
Fundamental rights are those rights that are “objectively, ‘deeply rooted in this
Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty,’ such
that ‘neither liberty nor justice would exist if they were sacrificed.’” Glucksberg, 521
U.S. at 720–21 (first quoting Moore v. City of E. Cleveland, 431 U.S. 494, 501
(1977); and then quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
Ms. Blackford contends the district court abused its discretion by failing to recognize
the PHO infringes on the fundamental right to engage in one’s chosen profession and
the fundamental right to bodily integrity. We consider these rights in turn.
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a. Right to engage in one’s chosen profession
Ms. Blackford contends the district court abused its discretion when it
concluded the right to engage in one’s chosen profession is not a fundamental right
that would subject the PHO to strict scrutiny. As she says, the Supreme Court has
stated people have a right to work in common occupations. Truax v. Raich, 239 U.S.
33, 41 (1915) (“It requires no argument to show that the right to work for a living in
the common occupations of the community is of the very essence of the personal
freedom and opportunity that it was the purpose of the Amendment to secure.”);
Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (noting the liberty guaranteed by the
Fourteenth Amendment includes “the right . . . to engage in any of the common
occupations of life”).5 However, this court has explicitly held the “right to practice in
[one’s] chosen profession . . . does not invoke heightened scrutiny” if subject to
reasonable health and safety regulations. Guttman v. Khalsa, 669 F.3d 1101, 1118
(10th Cir. 2012); cf. Conn v. Gabbert, 526 U.S. 286, 291–92 (1999) (holding the
“right to choose one’s field of private employment” is “subject to reasonable
government regulation” but suggesting the “complete prohibition of the right to
5
Ms. Blackford also cites Barry v. Barchi, 443 U.S. 55 (1979), to support her
assertion that she has a fundamental right to pursue her chosen profession. That
reliance is misplaced. In Barry, the Supreme Court considered whether a regulation
governing the licensure of horse trainers violated procedural due process and the
Equal Protection Clause. Id. at 61–62. The Court held the horse trainer’s license was
a property interest that warranted a post-deprivation hearing to satisfy the procedural
due process requirements. Id. at 66. The Court also concluded that the horse training
regulation did not violate equal protection even though the laws treated thoroughbred
and harness racing differently. Id. at 67. The Court did not conclude the horse trainer
had a fundamental right to pursue his chosen profession of horse training.
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engage in a calling” may be unreasonable). The district court properly relied upon
this binding precedent in finding Ms. Blackford did not have a fundamental right to
work unvaccinated in a hospital or congregate care facility. The district court
therefore did not make a legal error and did not abuse its discretion when it
concluded the PHO would not be subject to strict scrutiny even if it implicates the
right to pursue a chosen profession.
b. Bodily integrity
On appeal, Ms. Blackford also contends the PHO implicates the fundamental
right of bodily integrity and the district court erred by failing to reach the same
conclusion. In the request for a preliminary injunction, Ms. Blackford argued the
PHO “[v]iolates . . . the Fourth Amendment’s protection of [b]odily [i]ntegrity.”
App. at 27. But she did not explain how the Fourth Amendment would apply in the
context of her substantive due process or equal protection claims, nor did she cite any
authority or include any argument supporting the conclusion. As a result, the district
court did not address whether the PHO implicates the fundamental right to bodily
integrity. This failure was not an abuse of discretion because Ms. Blackford did not
adequately present the argument to the district court. See Mitchell v. City of Moore,
218 F.3d 1190, 1199 (10th Cir. 2000) (“The district court was not obligated to comb
the record in order to make [the plaintiff’s] arguments for him.”).
2. Rational Basis
Because the district court did not abuse its discretion in concluding the PHO
does not infringe on a fundamental right that requires heightened scrutiny, it did not
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abuse its discretion by applying rational-basis review to the PHO. Nor did the district
court abuse its discretion by concluding the PHO would likely satisfy rational-basis
review.
Rational-basis review requires the government action to be “rationally related
to legitimate government interests.” Glucksberg, 521 U.S. at 728. State actions
subject to rational-basis review are “presumed constitutional,” and courts uphold the
actions “if there is any reasonably conceivable state of facts that could provide a
rational basis for” them. Petrella v. Brownback, 787 F.3d 1242, 1266 (10th Cir.
2015) (first quoting Armour v. City of Indianapolis, 566 U.S. 673, 681 (2012); and
then quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)).
In applying this standard, the district court found the PHO likely satisfies the
rational-basis test. It explained the “governmental purpose of stemming the spread of
COVID-19” is a compelling government interest. App. at 215 (citing Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)). The district court also cited
to evidence in the record of scientific studies at the time of the hearing showing the
vaccines are generally safe and were believed to effectively reduce the spread of
COVID-19. 6 Thus, the district court found the PHO was likely rationally related to a
legitimate government purpose, and Ms. Blackford was not likely to succeed on her
6
If more research and data become available about the vaccines’ effectiveness
at preventing infections or limiting the spread of COVID-19, the parties may seek
further relief that would be evaluated based on that new evidence. A vaccine mandate
that was reasonable at the height of the pandemic may become less rational if the
health science changes.
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claims. This was not an abuse of discretion because it was supported by Supreme
Court precedent and evidence in the record.
Because the district court did not abuse its discretion by concluding
Ms. Blackford was not substantially likely to succeed on the merits of her substantive
due process and equal protection claims, Ms. Blackford has not succeeded on an
essential element for a preliminary injunction. Thus, we need not consider whether
the district court erred on the remaining elements for a preliminary injunction. See
Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1302 (10th Cir. 2006) (affirming a
denial of a preliminary injunction because the appellant had not shown a substantial
likelihood of success on the merits).
III. CONCLUSION
We AFFIRM the district court’s order denying a preliminary injunction against
the PHO.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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