1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 JONAH GOLD, Case No. 3:21-cv-00480-JVS-CBL
5 Plaintiff, 6 v. ORDER REGARDING MOTION 7 FOR TEMPORARY RESTRAINING BRIAN SANDOVAL, et al., ORDER AND ORDER TO SHOW 8 CAUSE 9 Defendants. 10 11 Plaintiff Jonah Gold (“Gold”) filed an Emergency Motion for a Temporary 12 Restraining Order and an Order to Show Cause why a preliminary injunction 13 should not issue. Mot., ECF No. 10. Gold provided Defendants Brian Sandoval 14 (“Sandoval”), Melody Rose (“Rose”), Lisa Sherych (“Sherych”), and Steve 15 Sisolak (“Sisolak”) (collectively, “Defendants”) with notice of the motion and an 16 opportunity to file an opposition. Fulton Decl., ECF No. 10-2. The Defendants did 17 not file a response. 18 19 For the following reasons, the Court DENIES the request for a temporary 20 restraining order and declines to issue an order to show cause why a preliminary 21 injunction should not issue. 22 23 I. BACKGROUND 24 25 This case concerns the constitutionality of the University of Nevada-Reno’s 26 COVID-19 vaccine policy. On August 20, 2021, the University of Nevada-Reno 27 (“University”) enacted the Student COVID-19 vaccine requirement (“Policy”) 28 which requires all students to be fully vaccinated against COVID-19 before 1 || enrolling for the Spring 2022 semester.’ 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, 4 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. 4] 10. 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 'See Student COVID-19 vaccine requirement, University of Nevada, Reno, 28 || https://www.unr.edu/coronavirus/vaccine/requirements.
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’! 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.”
1 || Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Supreme Court 2 || jurisprudence “establish[es] a threshold requirement—that a challenged state action 3 || implicate a fundamental right—before requiring more than a reasonable relation to 4 || a legitimate state interest to justify the action.” Glucksberg, 521 U.S. at 722. 5 || Gold’s complaint alleges that the Policy violates his “right of self-determination, 6 || personal autonomy and bodily integrity, as well as the right to reject medical 7 || treatment.” Compl. 4 117. The Court finds that Gold has not established that the 8 || Vaccine Policy implicates a fundamental right. See Glucksberg, 521 U.S. at 722 9 || (describing the “tradition of carefully formulating the interest at stake in 10 || substantive-due-process cases”); Williams v. Brown, — F. Supp. 3d —, 2021 WL 11 || 4894264, at *9 (D. Or. Oct. 19, 2021) (“This Court joins [the] growing consensus 12 || and concludes that there is no fundamental right under the Constitution to refuse 13 || vaccination.”). Accordingly, rational basis review is the appropriate standard to 14 || apply to the substantive due process claim. 15 16 Alternatively, Gold argues that the Policy violates the Equal Protection 17 || Clause. To prevail on an equal protection claim, a plaintiff must “show that a class 18 || that is similarly situated has been treated disparately.” Boardman v. Inslee, 978 19 || F.3d 1092, 1117 (9th Cir. 2020). If there is no suspect class at issue, differential 20 || treatment is presumed to be valid so long as it is “rationally related to a legitimate 21 || state interest.” City of Cleburne v. Cleburne Living Cent., 473 U.S. 432, 440 22 || (1985). Gold alleges that the Policy treats unvaccinated individuals in a punitive 23 || way, see Compl. § 132, but does not cite to any binding precedent to suggest that 24 || unvaccinated individuals constitute a suspect class. Cf. Bauer v. Summey, No. 25 || 2:21-CV-02952-DCN, 2021 WL 4900922, at *11 (D.S.C. Oct. 21, 2021) (holding 26 || that government policies that “treat vaccinated persons differently than 27 || unvaccinated persons, including those who have natural immunity” do not target a 28
1 || suspect class). Accordingly, the Court applies rational basis review to Gold’s 2 || Equal Protection claim. 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).
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 JONAH GOLD, Case No. 3:21-cv-00480-JVS-CBL
5 Plaintiff, 6 v. ORDER REGARDING MOTION 7 FOR TEMPORARY RESTRAINING BRIAN SANDOVAL, et al., ORDER AND ORDER TO SHOW 8 CAUSE 9 Defendants. 10 11 Plaintiff Jonah Gold (“Gold”) filed an Emergency Motion for a Temporary 12 Restraining Order and an Order to Show Cause why a preliminary injunction 13 should not issue. Mot., ECF No. 10. Gold provided Defendants Brian Sandoval 14 (“Sandoval”), Melody Rose (“Rose”), Lisa Sherych (“Sherych”), and Steve 15 Sisolak (“Sisolak”) (collectively, “Defendants”) with notice of the motion and an 16 opportunity to file an opposition. Fulton Decl., ECF No. 10-2. The Defendants did 17 not file a response. 18 19 For the following reasons, the Court DENIES the request for a temporary 20 restraining order and declines to issue an order to show cause why a preliminary 21 injunction should not issue. 22 23 I. BACKGROUND 24 25 This case concerns the constitutionality of the University of Nevada-Reno’s 26 COVID-19 vaccine policy. On August 20, 2021, the University of Nevada-Reno 27 (“University”) enacted the Student COVID-19 vaccine requirement (“Policy”) 28 which requires all students to be fully vaccinated against COVID-19 before 1 || enrolling for the Spring 2022 semester.’ 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, 4 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. 4] 10. 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 'See Student COVID-19 vaccine requirement, University of Nevada, Reno, 28 || https://www.unr.edu/coronavirus/vaccine/requirements.
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’! 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.”
1 || Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Supreme Court 2 || jurisprudence “establish[es] a threshold requirement—that a challenged state action 3 || implicate a fundamental right—before requiring more than a reasonable relation to 4 || a legitimate state interest to justify the action.” Glucksberg, 521 U.S. at 722. 5 || Gold’s complaint alleges that the Policy violates his “right of self-determination, 6 || personal autonomy and bodily integrity, as well as the right to reject medical 7 || treatment.” Compl. 4 117. The Court finds that Gold has not established that the 8 || Vaccine Policy implicates a fundamental right. See Glucksberg, 521 U.S. at 722 9 || (describing the “tradition of carefully formulating the interest at stake in 10 || substantive-due-process cases”); Williams v. Brown, — F. Supp. 3d —, 2021 WL 11 || 4894264, at *9 (D. Or. Oct. 19, 2021) (“This Court joins [the] growing consensus 12 || and concludes that there is no fundamental right under the Constitution to refuse 13 || vaccination.”). Accordingly, rational basis review is the appropriate standard to 14 || apply to the substantive due process claim. 15 16 Alternatively, Gold argues that the Policy violates the Equal Protection 17 || Clause. To prevail on an equal protection claim, a plaintiff must “show that a class 18 || that is similarly situated has been treated disparately.” Boardman v. Inslee, 978 19 || F.3d 1092, 1117 (9th Cir. 2020). If there is no suspect class at issue, differential 20 || treatment is presumed to be valid so long as it is “rationally related to a legitimate 21 || state interest.” City of Cleburne v. Cleburne Living Cent., 473 U.S. 432, 440 22 || (1985). Gold alleges that the Policy treats unvaccinated individuals in a punitive 23 || way, see Compl. § 132, but does not cite to any binding precedent to suggest that 24 || unvaccinated individuals constitute a suspect class. Cf. Bauer v. Summey, No. 25 || 2:21-CV-02952-DCN, 2021 WL 4900922, at *11 (D.S.C. Oct. 21, 2021) (holding 26 || that government policies that “treat vaccinated persons differently than 27 || unvaccinated persons, including those who have natural immunity” do not target a 28
1 || suspect class). Accordingly, the Court applies rational basis review to Gold’s 2 || Equal Protection claim. 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.* 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 | * See Letter from Lisa Scherych, Administrator, Division of Public and Behavioral Health, 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).
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 1 C. Irreparable Harm, Balance of the Harms, Public Interest 2 3 Within the Ninth Circuit, “serious questions going to the merits, and a 4 balance of hardships that tips sharply toward the plaintiff can support issuance of a 5 preliminary injunction, so long as the plaintiff also shows that there is a likelihood 6 of irreparable injury and that the injunction is in the public interest.” Alliance for 7 the Wild Rockies, 632 F.3d at 1134-35. At this stage, Gold has not only failed to 8 show a likelihood of success, he has not raised serious questions going to the 9 merits. 10 11 Even if the Court had found that Gold raised serious questions going to the 12 merits, the other factors would weigh against granting a temporary restraining 13 order. The balance of equities tips sharply towards the Defendants. The 14 Defendants are attempting to protect a campus community with thousands of 15 students, faculty, and staff from a deadly infectious disease. This far outweighs 16 any harm Gold may face in choosing between receiving a medically-approved 17 vaccination or receiving his education in an alternate manner. The public interest 18 also weighs heavily in favor of the Defendants. See Bruesewitz v. Wyeth LLC, 19 562 U.S. 223, 226 (2011) (describing “the elimination of communicable diseases 20 through vaccination” as “one of the greatest achievements of public health in the 21 20th century”) (internal quotations omitted). 22 23 In light of the failure to raise serious questions going to the merits, the 24 balance of hardships that weighs heavily towards the Defendants, and the strong 25 public interest that weighs against an injunction, the Court DENIES the request 26 for an temporary restraining order. 27 28 1 IV. CONCLUSION 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. 6 IT IS SO ORDERED. 8 | DATED: December 3, 2021 9 f yA 10 Ge Len ( / 4 Ie HONORABLE JAMES V. SELNA 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28