Federal Judge Does Not Block Vaccine Mandate

2:21-cv-03178-DCN Date Filed 10/21/21 Entry Number 13 Page 1 of 51
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SEAN BAUER, GIOVANNI BROWN, )

ALEXIS CHAVEZ, TEDDY GORMAN, )
HAMPTON JENKINS, SARAH MIDGETT, )
PATRICK NORWOOD, JAMES ROMER, )
MICHAEL SALVO, DONAVAN SNOVEL, )
JAMES STEWERT, HOWARD THOMAS, IV, )
PAUL WATSON, and ALEX WILKINSON, )
) ORDER
Plaintiffs, )
) No. 2:21-cv-02952-DCN
vs. )
)
R. KEITH SUMMEY, in his official and )
individual capacities, and CITY OF NORTH )
CHARLESTON, )
)
Defendants. )
_______________________________________)
)
AARON GDOVICAK, ALEXANDER )
GLOVER, ANDREW LUPISELLA, )
BENJAMIN PASTVA, BRENDAN )
SCHECKER, BRICE MACK, CARL )
DAVID GRANT, CECILIA F. LEONE, )
CHRIS EDWARDS, CRAIG HAMILTON, )
DANA FLANIGAN, EDWARD MARSHALL )
ANDERSON, ERIC GLOVER, GERRY )
HARTER, HAYLEY BELL, JANE DOE, )
JOHN CHARLES PETRO, JOHN DANIEL )
JOHNSON, JOHN DOE FIREFIGHTER #1, )
JOHN DOE FIREFIGHTER #2, JOHN E. )
BAKER, JOHN MCDONALD, JONATHAN )
MASSIE, JOSH TURNER, JOSHAWA )
DANIEL BELL, JOSHUA COR, JUSTIN )
KAHLE, KATELYN BROGAN, KIP )
HIBBARD, KYLE GARY SKEELS, LOGAN )
FACE, MATTHEW BRENNAN, MATTHEW )
WILSON, MICHAEL FEDELE, RICHARD )
WALLS, RJ WALLS, ROBERT SACCO, )
ROBERT TACKETT, SCOTT DABNEY, )
THOMAS MCNAMARA, TODD )
MCCUMBEE, TRAVIS DOVERSPIKE, )
1
VICTOR KRUZINSKY, and WILLIAM )

JAMES TOWNE, )
)
Plaintiffs, )
)
vs. ) No. 2:21-cv-03137-DCN
)
JOHN H. TECKLENBURG, in his official )
and individual capacities, and CITY OF )
CHARLESTON, )
)
Defendants. )
_______________________________________)
)
ASHLEIGH TUCKER, BLAKE ALVEY, )
CHRIS P. QUINN, DAVID JOHNSON, )
DENISE COBB, ELIZABETH MOFFAT, )
JANE DOE DISPATCHER, JEFFREY D. )
WATSON, JENNIFER SCIARROTTA, JOHN )
DOE DEPUTY #1, JOHN DOE DEPUTY #2, )
JOHN DOE DEPUTY #3, JONATHAN )
JOURDAN, LARRY DONALD HALL JR, )
MATTHEW HUTCHINSON, MCKENZIE )
EVERHAM, PAXTON CHEL HATCHELL )
PRETTEL, SHANNA MASCIA, STUART )
JOEY PRETTEL II, TIMOTHY JOSEPH )
CARROLL, DALE MCCANTS, JR., JOHN )
CHRISTOPHER ADAMS, DAVID )
JOHNSON, and RICKIE BIGGS, )
)
Plaintiffs, )
)
vs. ) No. 2:21-cv-03178-DCN
)
ANNA B. JOHNSON, in her official and )
individual capacities; HENRY E. DARBY, in )
his official and individual capacities; )
HERBERT RAVENEL SASS, III, in his )
official and individual capacities; KYLON )
JEROME MIDDLETON, in his official and )
individual capacities; ROBERT L. )
WEHRMAN, in his official and individual )
capacities; TEDDIE E. PRYOR, SR., in his )
official and individual capacities; and )
CHARLESTON COUNTY, )
)
2
Defendants. )
_______________________________________)
)
CHRIS HERNDON, DAMON BEVINS, )
DUSTIN KREINBROOK, JEREMEY )
EARDLEY, JONATHAN FLANAGAN, )
JOSEPH MARTIN, JUSTIN ELLIS, )
KEVIN FRIZZELL, KODY CAPATOSTO, )
MARK ORTIZ, RUSTY DEAN GROW, JR., )
and TRAVIS A. MILLER, )
)
Plaintiffs, )
)
vs. ) No. 2:21-cv-03192-DCN
)
COLLEEN WALZ, in her official and )
individual capacities; DEBRA LEHMAN, )
in her official and individual capacities; )
ERIC BRITTON, in his official and individual )
capacities; FRANK J. BROCCOLO, in his )
official and individual capacities; ISIAH )
WHITE, in his official and individual )
capacities; LEROY BLAKE, in his official and )
individual capacities; MARY JONES, in her )
official and individual capacities; ROBERT E. )
WRIGHT, in his official and individual )
capacities; STEPHEN ROLANDO, in his )
official and individual capacities; and ST. )
JOHN FIRE DISTRICT, )
)
Defendants. )
_______________________________________)
The following matter is before the court on the motions for preliminary
injunctions filed by plaintiffs in each of the above-captioned cases. Because the facts and
law underlying the four cases are almost identical, the parties have agreed to consolidate
the cases for the purpose of the court’s resolution of the motions for preliminary
injunctions. For the reasons set forth below, the court denies the motions.
3
I. BACKGROUND
This matter arises out of certain policies issued by the City of North Charleston,
the City of Charleston, the County of Charleston, and the St. John Fire District imposing
mandatory COVID-19 vaccine requirements on their employees and other affiliated
personnel. Plaintiffs in each of the above-captioned actions filed suit against the
respective government entities by whom they are employed or affiliated, challenging the
COVID-19 vaccine mandates as violative of their rights under the United States and
South Carolina Constitutions and under certain South Carolina statutes and common law.
The court provides a brief summary of each of the challenged policies below.
A. The City of North Charleston Executive Order
On September 1, 2021, Mayor R. Keith Summey (“Mayor Summey”), in his
capacity as the City of North Charleston’s chief executive, signed and issued Executive
Order Number 2021-0001 (the “Executive Order”). The Executive Order imposes a
mandatory COVID-19 vaccine requirement on all City of North Charleston employees,
volunteers, and interns, whether working on a full or part-time schedule. The Executive
Order mandates that compliance is a condition of continued employment and sets the
compliance date as November 5, 2021. A new policy implementing the Executive Order
was published to all employees. That policy requires that all employees be fully
vaccinated or have submitted a request for an exemption by November 5, 2021. The
policy provides a process by which employees can request an exemption based on
medical need or religious objection, and it provides for temporary deferral of the vaccine
mandate for any employee on extended leave, including under the Family and Medical
4
Leave Act or military leave, at the time of the effective date, and under other specified
circumstances.
Certain volunteers, vendors, and personnel affiliated with or employed by the City
of North Charleston (collectively, the “North Charleston plaintiffs”)1 filed for
administrative exemptions from the mandate. The North Charleston plaintiffs claim that
no individual plaintiff’s request has been approved. The North Charleston plaintiffs filed
the instant lawsuit and request for injunctive relief against the City of North Charleston
and Mayor Summey (collectively, the “North Charleston defendants”) in the Charleston
County Court of Common Pleas on September 13, 2021. On September 14, 2021, the
North Charleston defendants removed the action to this court. Bauer v. Summey, No.
2:21-cv-02952-DCN (D.S.C. 2021) (“Bauer”), ECF No. 1. On September 14, 2021, the
1
The plaintiffs originally named in the action work either in the City of North
Charleston’s police or fire departments. In the amended complaint, certain vendors and
first responders were also named as plaintiffs. Specifically, the amended complaint
includes two plaintiffs who serve as vendors at the City of North Charleston’s farmer’s
market. The parties agree that, on its face, the Executive Order does not apply to these
vendors. Plaintiffs argue that the City of North Charleston is nevertheless attempting to
enforce the Executive Order against the vendor plaintiffs. The court need not resolve this
issue at this time. The parties agree that the Executive Order undoubtedly applies to the
employee plaintiffs, meaning these parties have standing to challenge the Executive
Order and the court may properly consider their motion to enjoin that order at this time.
If the Executive Order is indeed inapplicable to vendors, then the court’s resolution of the
motion to enjoin enforcement of that order will not affect those vendors. If the Executive
Order ultimately applies to vendors, the court’s resolution of the motion to enjoin
enforcement of the order will apply equally to vendors as other employees and affected
personnel. Indeed, the vendor plaintiffs do not present any individualized arguments that
the Executive Order is specifically unenforceable against them apart from the arguments
presented by employee plaintiffs. In any event, counsel for the City of North Charleston
represented that the farmer’s market will close for the season before the effective date of
the Executive Order. Therefore, these vendors will not be immediately subject to the
vaccine mandate, mooting the need for a preliminary injunction as to these plaintiffs at
this time. The same analysis applies to vendor plaintiffs in the other above-captioned
actions, along with any other plaintiffs in these actions who may not necessarily be
subject to the vaccine mandates at issue.
5
North Charleston plaintiffs filed a motion for a preliminary injunction. Bauer, ECF No.
4. On September 24, 2021, the North Charleston defendants responded in opposition,
Bauer, ECF No. 14, and on October 5, 2021, the North Charleston plaintiffs replied.
Bauer, ECF No. 17.
B. The City of Charleston Personnel Policy
On September 3, 2021, the City of Charleston announced the adoption of a new
personnel policy imposing a mandatory COVID-19 vaccine requirement on all
employees, volunteers, interns, and agency temporary employees of the City of
Charleston, whether working on a full or part-time schedule. The policy mandates that
compliance is a condition of continued employment and sets the compliance date as no
later than November 22, 2021. The policy was published to all employees and requires
that all employees be fully vaccinated or have submitted a request for exemption by
November 22, 2021. The policy provides a process by which employees can request an
exemption based on medical need or religious objection, and it provides for temporary
deferral for any employee on extended leave at the time of the effective date and under
other specified circumstances.
Certain individuals allegedly subject to the City of Charleston’s personnel policy
(the “Charleston plaintiffs”) 2 filed for administrative exemptions from the mandate. The
2
The named Charleston plaintiffs, with the exception of plaintiff Cecilia Leone,
are employees of the City of Charleston who oppose its COVID-19 vaccine mandate.
Plaintiff Leone alleges that she is a vendor with the City of Charleston. The Charleston
defendants complain that plaintiff Leone is not subject to the City of Charleston’s
personnel policy and therefore lacks standing to challenge that policy. Moreover,
defendants complain that three of the plaintiffs improperly joined the action anonymously
under “Jane” and “John Doe” status. Again, because the Charleston plaintiffs who are
employees undoubtedly have standing, the court may resolve the motion for preliminary
injunction and need not resolve the issues raised as to the other plaintiffs at this time.
6
Charleston plaintiffs claim that no individual plaintiff’s request has been approved. The
Charleston plaintiffs filed suit against the City of Charleston and its mayor, John H.
Tecklenberg, (together, the “Charleston defendants”) on September 23, 2021 in the
Charleston County Court of Common Pleas. Subsequently, the Charleston defendants
removed the case to this court on September 27, 2021. Gdovicak v. Tecklenburg, No.
2:21-cv-03137-DCN (D.S.C. 2021) (“Gdovicak”), ECF No. 2. The Charleston plaintiffs
filed their motion for preliminary injunction on September 30, 2021. Gdovicak, ECF No.
6. On October 13, 2021, the Charleston defendants responded in opposition, Gdovicak,
ECF No. 7, and on October 14, 2021, the Charleston plaintiffs replied, Gdovicak, ECF
No. 8.
C. County of Charleston Personnel Policy
On September 16, 2021, the County of Charleston (the “County”) announced the
adoption of a new personnel policy requiring that all employees, volunteers, interns,
contracted employees, and agency temporary employees of the Charleston County
Government be fully vaccinated against COVID-19 no later than November 7, 2021. The
new policy was published to all employees. The policy excludes employees of elected or
appointed officials except those choosing to adopt and enforce the policy and does not
apply to vendors other than those who provide temporary staff or on-site workers. The
policy provides a process by which employees can request an exemption for medical or
religious reasons, and it provides for temporary deferral for any employee on extended
leave at the time of the effective date and under other specified circumstances.
7
Certain employees, vendors, and sheriff’s deputies (the “County plaintiffs”)3 filed
for administrative exemptions from the mandate. The County plaintiffs claim that no
individual plaintiff’s request has been approved. The County plaintiffs filed suit against
the County and certain County Council members (the “County defendants”) on
September 24, 2021 in the Charleston County Court of Common Pleas. The County
defendants removed the case to this court on October 1, 2021. Tucker v. Johnson, No.
2:21-cv-03178-DCN (D.S.C. 2021) (“Tucker”), ECF No. 2. On September 30, 2021, the
County plaintiffs filed their motion for a preliminary temporary injunction. Tucker, ECF
No. 3. On October 5, 2021, the County defendants responded in opposition, Tucker, ECF
No. 7, and on October 11, 2021, the County plaintiffs replied, Tucker, ECF No. 9.
D. St. John Fire District Personnel Policy
On September 7, 2021, the St. John Fire District (the “District”) announced the
adoption of a new personnel policy requiring that all District employees be fully
vaccinated against COVID-19 no later than November 20, 2021. The new policy was
published to all employees. The policy provides a process by which employees can
request an exemption for medical or religious reasons, and it provides for temporary
deferral for any employee on extended leave at the time of the effective date and under
other specified circumstances.
3
The court does not address defendants’ standing challenge to the sheriff’s deputy
plaintiffs at this time. Defendants argue that the sheriff’s deputy plaintiffs lack standing
because the County has no authority to create policies that control them, as they are not
County employees. However, the parties do not dispute that the plaintiffs employed by
the County have standing to challenge the County’s personnel policy and vaccine
mandate therein, and therefore the court may properly resolve the instant motion for
preliminary injunction whether or not the sheriff’s deputies also have standing.
8
After publication of the policy, certain firefighters employed by the District (the
“District plaintiffs”) filed for administrative exemptions from the mandate. The District
plaintiffs claim that no individual plaintiff’s request has been approved. The District
plaintiffs filed suit against the District, the Chief of the District, and members of the
District’s appointed commission (collectively, the “District defendants”) on September
23, 2021 in the Charleston County Court of Common Pleas. The District defendants
removed the case to this court on September 30, 2021. Herndon v. Walz, No. 2:21-cv-
03192-DCN (D.S.C. 2021) (“Herndon”), ECF No. 2. On September 30, 2021, the
District plaintiffs filed a motion for a preliminary temporary injunction. Herndon, ECF
No. 3. On October 8 and 14, 2021, the District defendants responded in opposition,
Herndon, ECF Nos. 17 and 20, and on October 13 and 15, 2021, the District plaintiffs
replied, Herndon, ECF Nos. 19 and 21.
The court held a hearing on the North Charleston, Charleston, County, and
District plaintiffs’ (collectively, “plaintiffs”) motions for preliminary injunction in all
four above-captioned cases on October 14, 2021. As such, the motions are now ripe for
review.
II. STANDARD
“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” United States v. South
Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981)). “A plaintiff seeking a preliminary injunction must establish
that [1] he is likely to succeed on the merits, [2] that he is likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the balance of the equities tips in his
9
favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). “To obtain a preliminary injunction under the
Winter test, a movant must make a ‘clear showing’ of [the] four requirements.”
Alkebulanyahh v. Nettles, 2011 WL 2728453, at *3 (D.S.C. July 13, 2011); see also
Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (“Winter thus
requires that a party seeking a preliminary injunction . . . must clearly show that it is
likely to succeed on the merits.”) (internal quotation marks omitted). As the Supreme
Court has noted, a preliminary injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555
U.S. at 22.
III. DISCUSSION
Plaintiffs seek a preliminary injunction to preserve the status quo during the
pendency of the litigation of all four cases. Specifically, plaintiffs request injunctions
prohibiting the North Charleston, Charleston, County, and District defendants
(collectively, “defendants”) from enforcing their respective policies (the “Policies”), and
particularly the COVID-19 vaccine mandates therein, against plaintiffs and similarly
situated individuals until this action can be resolved on the merits. For such an injunction
to issue, plaintiffs must make a clear showing as to each of prong of the Winter test. The
court discusses each prong in turn.
A. Likelihood of Success on the Merits
Plaintiffs base their injunction requests on their allegations that the Policies
violate the United States Constitution and South Carolina statutory and common law.
Therefore, for an injunction to issue, plaintiffs must make a clear showing that they are
10
likely to succeed on the merits of those claims. See Winter, 555 U.S. at 20; Pashby v.
Delia, 709 F.3d 307, 321 (4th Cir. 2013) (internal citations omitted).
As an initial matter, the motions for preliminary injunction are little more than a
recitation of the allegations in the complaint, without an overview of the law underlying
plaintiffs’ claims or application of the facts to that law. As such, defendants were left to
prognosticate the arguments that plaintiffs intended to make under each of their claims
and preemptively rebut those arguments in their responses. Plaintiffs do little in their
replies to clarify the issues and applicable legal framework, but, instead, further
complicate the motions by consistently conflating their claims and reciting various legal
buzz words and catch phrases without explaining how those principles apply to the
instant actions. The merits of plaintiffs’ claims, as best as they can be construed, are
addressed in turn below.
1. Constitutional Claims
Plaintiffs allege that the Policies violate the United States Constitution’s
guarantee of due process, equal protection, and free exercise of religion. Under 42
U.S.C. § 1983, an individual may sue a municipality for constitutional violations caused
by a government “policy or custom.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). Section 1983 further allows an individual to bring a civil action against a
government official who infringes on a constitutionally protected right. Elrod v. Burns,
427 U.S. 347, 359 (1976). Nevertheless, the court finds that none of the alleged
constitutional violations warrant enjoining the Policies.
11
a. Due Process
Plaintiffs claim that the Policies, and specifically their conditioning of plaintiffs’
employment on their receipt of the COVID-19 vaccine, violate their procedural and
substantive due process rights under the Fourteenth Amendment to the United States
Constitution. The Fourteenth Amendment states: “No State shall . . . deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV.
The Due Process Clause encompasses two distinct forms of protection: (i) procedural due
process, which requires a state to employ fair procedures when depriving a person of a
protected interest; and (ii) substantive due process, which guarantees that a state cannot
deprive a person of a protected interest for certain reasons. See City of Sacramento v.
Lewis, 523 U.S. 833, 845–46 (1998).
Procedural and substantive due process claims require different showings. Under
procedural due process, “protection of property is a safeguard of the security interests that
a person has already acquired in specific benefits.” Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 576 (1972). “It is a guarantee of fair procedures, typically notice and
an opportunity to be heard.” Mora v. City of Gaithersburg, 519 F.3d 216, 230 (4th Cir.
2008) (quotations omitted). In contrast, substantive due process “is a far narrower
concept than procedural; it is an absolute check on certain government actions
notwithstanding the fairness of the procedures used to implement them.” Roth, 408 U.S.
at 576 (citing Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995)). “Under either form
of protection, however, a person must have a protected interest in either life, liberty, or
property.” Chavez-Rodriguez v. City of Santa Fe, 2008 WL 5992271, at *6 (D.N.M. Oct.
9, 2008).
12
i. Procedural Due Process
Plaintiffs allege in their motions that the Policies “deprive[] Plaintiffs of their
property interest in their jobs . . . without due process.” Bauer, ECF No. 4 at 6. The
court construes these allegations as procedural due process claims. To demonstrate
a procedural due process violation, a plaintiff must show that he or she has a
constitutionally protected property or liberty interest, and that he or she was deprived of
that interest by the state without due process of law. Roth, 408 U.S. at 564; Tri Cnty.
Paving, Inc. v. Ashe Cnty., 281 F.3d 430, 436 (4th Cir. 2002). Thus, as a threshold issue,
to establish a procedural due process claim, plaintiffs must have a property interest in
their continued employment with the respective governmental entities.
A property interest exists when one has a legitimate claim of entitlement to a right
arising from such sources as state statutes, local ordinances, and employment contracts.
Roth, 408 U.S. at 577. The Supreme Court has stated that in order to possess a property
interest in one’s employment, “a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Id. The Supreme Court also has held that
although a property interest in employment can be created by statute, ordinance, or
express or implied contract, “the sufficiency of the claim of entitlement must be decided
by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344 (1976). South Carolina
has long recognized the doctrine of at-will employment. “An at-will employee may be
terminated at any time for any reason or for no reason, with or without cause.” McNeil v.
S.C. Dep’t. of Corrections, 743 S.E.2d 843 (S.C. Ct. App. 2013). The “Fourth Circuit has
repeatedly made it clear that at-will employees lack an enforceable expectation of
13
continued employment (i.e., a property interest) and, consequently, cannot maintain a
claim under Section 1983 for violation of due process under the fourteenth amendment
based on their employment discharge.” Williams v. Strickland, 1993 WL 153915, at *4
(D.S.C. Mar. 12, 1993) (counting cases); see Pittman v. Wilson Cnty., 839 F.2d 225, 229
(4th Cir. 1988) (holding that an at-will employee does not have a property interest in his
position of employment); Thompson v. Richland Cnty. Sch. Dist. One, 2018 WL
2676159, at *6 (D.S.C. June 5, 2018) (applying South Carolina law and finding that
because plaintiff “fail[ed] to identify any employment policy or mutually explicit
understanding that would support a claim of entitlement to her employment . . . she is
unable to assert any property interest in her continued employment with the District
sufficient to state a claim for a violation of her due process rights”); Hamilton v. Bd. of
Trs. of Oconee Cnty. Sch. Dist., 319 S.E.2d 717, 721 (S.C. Ct. App. 1984) (finding no
property interest in plaintiff’s continued employment within the meaning of the due
process clause when the plaintiff “pointed to no state law or regulation that would require
her employment contract to be renewed”); Nkwocha v. S.C. State Univ., 2014 WL
1278006, at *8 (D.S.C. 2014) (finding that a non-tenured, at-will employee employed
pursuant to a series of written contracts detailing employment for a fixed time period and
serving at the pleasure of the president did not have a constitutionally-protected property
interest in continued employment).
Defendants have presented to the court various signed documents whereby
individual plaintiffs expressly acknowledged the at-will status of their employment, and
plaintiffs do not challenge the authenticity of these documents or otherwise dispute that
14
plaintiffs are all employed at-will. See, e.g., Bauer, ECF No. 14-1.4 Rather, plaintiffs
argue that South Carolina’s “public policy exception to at-will employment” applies.
Bauer, ECF No. 17 at 12. Specifically, plaintiffs argue that the South Carolina Supreme
Court recognizes a public policy that people should not be fired for their political beliefs.
Bauer, ECF No. 17 at 13 (citing Culler v. Blue Ridge Elec. Coop., Inc., 422 S.E.2d 91, 93
(S.C. 1992)). Plaintiffs explain that they believe “that the right to control their own
medical destinies is both expressive speech in the form of opposition to the COVID-19
vaccine, and expressive conduct in opposition to the vaccine mandate.” Bauer, ECF No.
4 at 3. Plaintiffs argue that they “have made it very clear they do not intend to get the
COVID vaccine, they do not agree with it politically, and believe it is their inherent right
protected by the constitution to refuse it.” Bauer, ECF No. 17 at 9–10.
South Carolina law does indeed recognize an exception to employment-at-will
status where an employee is discharged in contravention of South Carolina public
policy. See Epps v. Clarendon Co., 405 S.E.2d 386, 387 (S.C. 1991). However, the fact
that the public policy exception creates a right of action in certain limited circumstances
does not, by itself, mean that employees discharged for reasons that violate public policy
are given a property right in their employment. See Beck v. City of Durham, 129 F.
Supp. 2d 844, 850–51 (M.D.N.C. 2000). The court does not find—and plaintiffs do not
cite—any authority under South Carolina law that stands for the proposition that South
Carolina public policy creates property rights in employment. In the absence of such
authority, the court will not expand upon the meaning of the public policy exception to
4
Because the parties’ briefings on the motions for preliminary injunction in each
case are effectively the same in all material respects, the court references only the Bauer
briefings in its discussion.
15
employment-at-will status under South Carolina law. In any event, as explained more
thoroughly in connection with plaintiffs’ wrongful discharge claims, plaintiffs fail to
make a clear showing that the public policy exception applies in these actions. Therefore,
because plaintiffs have not made a clear showing that they have a property interest in
continued employment, they have not shown likelihood of success on the merits of their
procedural due process claim.
Even if plaintiffs could establish a property interest in their employment, they
must also establish that defendants deprived them of due process in infringing on that
interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)
(citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)) (“[O]nce it is determined that
the Due Process Clause applies, the question remains what process is due.”). Plaintiffs
fail to explain how defendants’ processes for implementing the Policies were defective.
This failure provides an alternative, independent ground for finding that plaintiffs did not
make a clear showing of likelihood of success on their procedural due process claims.
“An essential principle of due process is that a deprivation of life, liberty, or
property be preceded by notice and opportunity for hearing appropriate to the nature of
the case.” Id. at 542 (internal quotation marks and citation omitted). However, an
individual’s due process rights are not violated by a law of general applicability since
“the legislative determination provides all the process that is due.” Logan v. Zimmerman
Brush Co., 455 U.S. 422, 433 (1982). During the hearing, counsel for defendants
classified the City of North Charleston Executive Order as an executive act and the City
of Charleston, County, and District personnel policies as legislative acts. Counsel for
plaintiffs did not object to these classifications. Nevertheless, the court finds that the
16
Executive Order is also legislative in nature because it is “attempting through policy, to
achieve a stated government purpose,” rather than adjudicate disputed facts of a
particular case. ETP Rio Rancho Park, LLC v. Grisham, 522 F. Supp. 3d 966, 1028–29
(D.N.M. 2021) (explaining that although a State executive agency issued the public
health order at issue, that order is “akin to a legislative action.”); see Interport Pilots
Agency Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir. 1994) (“Official action that is
legislative in nature is not subject to the notice and hearing requirements of the due
process clause. These constitutional due process requirements apply only where the
official action is designed to adjudicate disputed facts in particular cases.” (internal
quotation marks and citation omitted)); Abdi v. Wray, 942 F.3d 1019, 1027 (10th Cir.
2019) (finding a directive by the attorney general akin to legislative action because it was
not the specific act of a governmental officer, but rather the concerted action of several
agency employees). Accordingly, the Policies do not violate plaintiffs’ due process rights
if they are of general applicability. See United States v. Locke, 471 U.S. 84, 108 (1985)
(“In altering substantive rights through enactment of rules of general applicability, a
legislature generally provides constitutionally adequate process simply by enacting the
statute, publishing it, and, to the extent the statute regulates private conduct, affording
those within the statute’s reach a reasonable opportunity both to familiarize themselves
with the general requirements imposed and to comply with those requirements.”); Okla.
Educ. Ass’n v. Alcoholic Beverage Laws Enf’t Comm’n, 889 F.2d 929, 936 (10th Cir.
1989) (“When the legislature passes a law which affects a general class of persons, those
persons have all received procedural due process—the legislative process.”); Curlott v.
Campbell, 598 F.2d 1175, 1181 (9th Cir. 1979) (“[W]e doubt very much that procedural
17
due process prior to reduction of benefits is required when an agency makes a broadly
applicable, legislative-type decision.”).
At least one district court reviewing a property interest claim in the context of an
employer-imposed COVID-19 vaccine mandate has held that the employees received all
the process to which they were entitled when the prospective rule—which applied to all
employees, albeit with certain exemptions—was implemented and published to the
plaintiffs. See Valdez v. Grisham, 2021 WL 4145746, at *9 (D.N.M. Sept. 13, 2021)
(explaining that because a public health order was “generally applicable” to all
congregate care facility workers, hospital workers, school workers, state fair attendees,
and governor’s office staff, the plaintiffs were “not entitled to [process] above and
beyond the notice provided by the enactment and publication of the [order] itself”). Here,
plaintiffs do not dispute whether the Policies were published to all plaintiffs. Moreover,
because all employees of defendants are subject to the same vaccine mandate and
exemptions, the Policies most likely would be considered generally applicable.
Therefore, plaintiffs have not clearly shown, and indeed have not argued, that they are
entitled to any greater process beyond the notice and enactment of the Policies.
Additionally, at least one court has found that the state provided due process
where state law permitted the plaintiff to file suit to challenge the legality of an
administrative order before a court of law. See SH3 Health Consulting, LLC v. Page,
459 F. Supp. 3d 1212, 1226 (E.D. Mo. 2020) (finding no procedural due process violation
because Missouri law provided a means for judicial review of an administrative order for
illegality). Plaintiffs clearly have a similar opportunity to challenge the legality of the
Policies and are fully taking advantage of that opportunity by pursuing the instant actions.
18
Overall, based on the foregoing, the court finds that plaintiffs have not clearly shown that
they are likely to prevail on their procedural due process claim.
ii. Substantive Due Process
Plaintiffs also allege that the Policies violate their substantive due process rights.
Plaintiffs generally argue that they have constitutionally protected liberty interests in their
“bodily integrity, privacy, and constitutional protections just to name a few.” Bauer, ECF
No. 17 at 8. Plaintiffs further argue that, because the Policies are “not narrowly tailored”
to any “compelling interest,” they violate these substantive due process rights. Id. at 8–9.
Substantive due process rights are much more limited in scope than procedural
due process rights. For substantive due process to apply, governmental action must be
“so arbitrary and irrational, so unjustified by any circumstance or governmental interest,
as to be literally incapable of avoidance by any pre-deprivation procedural protection or
of adequate rectification by any post-deprivation state remedies.” Rucker v. Harford
Cnty., 946 F.2d 278, 281 (4th Cir. 1991), cert. denied, 502 U.S. 1097 (1992). Depending
upon whether the claimed violation is by executive act or legislative enactment, different
methods of judicial analysis are appropriate. Hawkins v. Freeman, 195 F.3d 732, 738–39
(4th Cir. 1999); see Lewis, 523 U.S. at 845–50. This is so because there are different
“criteria” for determining whether executive acts and legislative enactments are “fatally
arbitrary,” an essential element of any substantive due process claim. Hawkins, 195 F.3d
at 738–39.
In executive act cases, the issue of fatal arbitrariness should be addressed as a
“threshold question,” asking whether the challenged conduct was “so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 738
19
(internal citation omitted). If it does not meet that conscience-shocking test, the claim
fails on that account, with no need to inquire into the nature of the asserted liberty
interest. If it does meet the threshold test of culpability, the inquiry must turn to the
nature of the asserted interest to determine the level of protection to which it is
entitled. See id.
If the claimed violation is by legislative enactment, the court’s analysis proceeds
by a different two-step process that does not involve any threshold “conscience-
shocking” inquiry. The first step in this process is to determine whether the claimed
violation involves one of “those fundamental rights and liberties which are, objectively,
‘deeply rooted in this Nation’s history and tradition,’” Washington v. Glucksberg, 521
U.S. 702, 720–21 (1997) (quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503
(1977)), and “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor
justice would exist if they were sacrificed,’” id. (quoting Palko v. Connecticut, 302 U.S.
319, 325 (1937)). The next step depends upon the result of the first. If the asserted
interest has been determined to be “fundamental,” it is entitled in the second step to the
protection of strict scrutiny judicial review of the challenged legislation. See id. at 721
(quoting Reno v. Flores, 507 U.S. 292, 302 (1993)) (observing that fundamental liberty
interest is violated by legislation that infringes it unless the legislation is “‘narrowly
tailored to serve a compelling state interest’”). If the interest is determined not to be
“fundamental,” it is entitled only to the protection of rational-basis judicial
review. See id. at 728.
Critically, the “fundamental interest” inquiry must be conducted on the basis of a
“careful description of the asserted fundamental liberty interest.” Id. at 720 (quotation
20
omitted); see Hawkins, 195 F.3d at 738–39. Such a careful description is necessary
because the “Nation’s history, legal traditions, and practices . . . provide the crucial
‘guideposts for responsible decisionmaking,’” and these guideposts would be threatened
by analyzing the claimed right at too general a level. Glucksberg, 521 U.S. at 721–22
(quoting Collins, 503 U.S. at 125) (rejecting claimants’ suggested description of their
asserted right to assisted suicide as being one “to die,” or “to choose how to die,” or to
“control one’s final days,” and instead analyzing right more narrowly as one “to commit
suicide which itself includes a right to assistance in doing so”).
The parties do not argue in their briefs whether the Policies should be considered
executive acts or legislative enactments. However, as previously noted, counsel for
defendants argued in the hearing that the court should treat the City of North Charleston’s
Executive Order as an executive act and the City of Charleston, County, and District’s
personnel policies as legislative acts, and counsel for plaintiffs did not dispute this
proposed approach. As also previously noted, precedent suggests that public health
orders similar to the City of North Charleston’s Executive Order are properly considered
legislative enactments. See, e.g., Valdez, 2021 WL 4145746, at *5–8 (finding that
“plaintiffs advance a substantive due process challenge to a legislative enactment,
namely, the [public health order]” (internal quotations omitted and emphasis in
original)); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1182 (10th Cir. 2009); ETP
Rio Rancho Park, 2021 WL 765364, at *41 (noting that “although the NMDOH—a state
executive agency”—issued the challenged public health order, it was “akin to a
legislative action”). Therefore, to avoid any doubt, the court addresses plaintiffs’
challenge to the Policies under both the executive act “conscience-shocking” and
21
legislative enactment “fundamental interest” tests. In so doing, the court finds plaintiffs
unlikely to prevail in establishing that the Policies violate their substantive due process
rights under either test.
First, the court finds that plaintiffs have not shown a likelihood of success on the
substantive due process claims under the shocks-the-conscience inquiry. Even if the
executive act test applies to the Policies, defendants’ actions do not violate the plaintiffs’
substantive due process rights because they do not shock the court’s conscience. See
Rochin v. California, 342 U.S. 165, 172 (1952); Schaefer v. Las Cruces Pub. Sch. Dist.,
716 F. Supp. 2d at 1059 n.2. “Conduct that shocks the judicial conscience” is “deliberate
government action that is arbitrary and unrestrained by the established principles of
private right and distributive justice.” Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th
Cir. 2013). The shocks-the-conscience standard is a high bar. Cf. Rochin, 342 U.S. at
172 (finding that officers forcibly pumping suspect’s stomach for morphine capsules
“shock[ed] the conscience”). “The behavior complained of must be egregious and
outrageous.” Hernandez, 734 F.3d at 1261 (citing Breithaupt v. Abram, 352 U.S. 432,
435 (1957)).
Plaintiffs do not attempt to argue that the Policies are so “egregious and
outrageous” that they shock the court’s conscience. Id. Rightfully so. The Policies’
implementation of a vaccine mandate to prevent the spread of a deadly virus among the
defendant governmental entities’ employees and the citizens they serve does not rise to
the level of conscience-shocking. See Herrin v. Reeves, 2020 WL 5748090, at *9 (N.D.
Miss. Sept. 25, 2020) (“[T]his court finds the notion that restrictions designed to save
human lives are ‘conscious shocking’ to be absurd and not worthy of serious
22
discussion.”); Maniscalco v. N.Y.C. Dep’t of Educ., 2021 WL 4344267, at *3 (E.D.N.Y.
Sept. 23, 2021) (“Although plaintiffs argue that there are other proven means of
preventing the spread of COVID-19 in schools, among them frequent testing and mask
wearing, it is not shocking for the City to conclude that vaccination is the best way to do
so, particularly at a time when viral transmission rates are high.”). Therefore, the court
cannot find that plaintiffs are likely to satisfy their burden of proving a substantive due
process violation under the conscience-shocking test.
Second, the court finds that plaintiffs fail to make a clear showing that they are
likely to succeed on their substantive due process claims under the fundamental interest
inquiry. Specifically, plaintiffs fail to clearly show likelihood of success in establishing a
fundamental right at issue that has been recognized by courts or that is deeply rooted in
this nation’s history and traditions and implicit in the concept of ordered liberty.
Plaintiffs’ overly general characterization of the rights at issue as “bodily integrity” or
“privacy” falls short of the required “careful description” of the liberty interest.5
5
Plaintiffs also assert that the Policies infringe on their liberty interest in
declining unwanted medical treatment under Cruzan v. Director, Missouri Department of
Health, 497 U.S. 261, 278 (1990), Washington v. Harper, 494 U.S. 210 (1990), and King
v. Rubenstein, 825 F.3d 206, 222 (4th Cir. 2016). Not only is this abstract
characterization of the liberty interest at issue too broad, but plaintiffs’ reliance on these
cases is also misplaced. Each of these cases involved inmates being forcibly injected or
forcibly given unwanted medical treatment. Here, no plaintiff is imprisoned and facing
vaccination against his or her will. Rather, plaintiffs are choosing whether to comply
with a condition of continued employment—employment for which they have not shown
that they possess a constitutionally protected interest in maintaining. Moreover, the cases
on which plaintiffs rely involved an inmate’s choice related to medical treatment “with
no ramifications to the physical health of others. Vaccines address a collective enemy,
not just an individual one.” Klaassen v. Trs. of Ind. Univ. (“Klaassen I”), 2021 WL
3073926, at *22–26 (N.D. Ind. July 18, 2021); see Mass. Correction Officers Federated
Union v. Baker, 2021 WL 4822154, at *7 (D. Mass. Oct. 15, 2021) (finding the plaintiffs’
appeal to Cruzan misplaced because “Cruzan’s holding . . . was limited to an individual’s
choice related to the refusal of lifesaving medical care and nutrition, with no impact on
23
Glucksberg, 521 U.S. at 722. Rather, a more appropriate description is plaintiffs’ interest
in continued employment with defendants while unvaccinated for COVID-19. See
Kheriaty v. Regents of the Univ. of Cal., 2021 WL 4714664, at *5 (C.D. Cal. Sept. 29,
2021) (rejecting the plaintiff’s assertion that the a vaccine mandate infringed on a
“fundamental right to bodily integrity” and instead considering the liberty interest at stake
to be the plaintiff’s interest in continuing employment while refusing a vaccine that
protects him and the community at large from an infectious disease). Under this more
“careful description,” plaintiffs’ alleged violation does not involve a fundamental interest.
Norris v. Stanley, 2021 WL 4738827, at *2 (W.D. Mich. Oct. 8, 2021) (“Although
Plaintiff advocates that strict scrutiny should apply because [the university]’s vaccine
policy violates her fundamental rights to privacy and bodily integrity under the
Fourteenth Amendment, this argument is without merit. Plaintiff is absolutely correct
that she possesses those rights, but there is no fundamental right to decline a
vaccination.”).
Notably, the Supreme Court has expressly rejected the idea of a fundamental right
to refuse vaccination. In Jacobson v. Massachusetts, 197 U.S. 11, 26–27 (1905), the
Supreme Court upheld a state law allowing cities and towns to implement vaccine
mandates in order to contain smallpox outbreaks. In so holding, the Supreme Court
rejected an argument that liberty interests under the Fourteenth Amendment inevitably
the health of others or the public”). As such, the caselaw involving the refusal of medical
treatment that plaintiffs rely on is inapposite to the instant action. Moreover, the fact that
courts overwhelmingly apply rational basis review to assess mandatory vaccination
measures further undermines plaintiffs’ argument. Indeed, plaintiffs’ appeal to these
factually distinct cases and failure to cite a single vaccine mandate case that applied strict
scrutiny is telling.
24
prevail in these circumstances. Specifically, the Supreme Court stated, “We are
unwilling to hold it to be an element in the liberty secured by the Constitution of the
United States that one person, or a minority of persons, residing in any community and
enjoying the benefits of its local government, should have the power thus to dominate the
majority when supported in their action by the authority of the state.” Id.6
Since Jacobson, federal courts have consistently held that vaccine mandates do
not implicate a fundamental right and, accordingly, applied rational basis review in
determining the constitutionality of such mandates. See, e.g., Klaassen v. Trs. of Ind.
Univ. (“Klaassen II”), 7 F.4th 592 (7th Cir. 2021) (rejecting an assertion by the plaintiffs,
who challenged Indiana University’s mandatory COVID-19 vaccine requirement, that the
rational basis standard does not offer enough protection for their interests, indicating that
the court “must apply the law established by the Supreme Court” in Jacobson, which, in
holding that “a state may require all members of the public to be vaccinated against
smallpox,” “shows that plaintiffs lack” a fundamental right to be free from mandatory
vaccine measures); Klaassen I, 2021 WL 3073926, at *24 (collecting cases demonstrating
“the consistent use of rational basis review to assess mandatory vaccination measures,”
and, in light of “a century’s worth of rulings,” declining to “extend substantive due
6
Although some have questioned the present-day applicability of Jacobson
because it predates formalized tiers of scrutiny, the Fourth Circuit has cited and relied
upon it in an unpublished case as recently as 2011. Workman v. Mingo Cnty. Bd. of
Educ., 419 F. App’x. 348 (2011). Moreover, counsel for both plaintiffs and defendants
agreed during the hearing that Jacobson is still good law and applies to the instant
actions. It appears to the court that the majority of courts considering challenges to state
and local COVID-19 restrictions have respected Jacobson’s precedential value, and the
court follows suit today. See, e.g., M. Rae, Inc. v. Wolf, 2020 WL 7642596, at *6 (M.D.
Pa. Dec. 23, 2020) (“The bottom line for our purposes is that Jacobson is controlling
precedent until the Supreme Court or Third Circuit Court of Appeals tell us otherwise.”).
25
process to recognize” a fundamental right to be free from COVID-19 vaccination
requirements); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)
(Gorsuch, J., concurring) (explaining that Jacobson is “essentially . . . rational basis
review”); Dixon v. De Blasio, 2021 WL 4750187, at *8 (E.D.N.Y. Oct. 12, 2021)
(rejecting the plaintiffs’ appeal to the right to the “freedom of bodily health and integrity”
and explaining that the “right to refuse vaccination is not a fundamental right”); Harris v.
Univ. of Mass., 2021 WL 3848012, at *6 (D. Mass. Aug. 27, 2021) (in considering a
policy that required on-campus students to be COVID-19 vaccinated prior to the fall
semester, noting that “Fourteenth Amendment challenges to generally applicable public
health measures” call for a “deferential standard”).
These numerous holdings are consistent with well-settled law that a state,
including South Carolina, can require vaccination for school attendance. See Zucht v.
King, 260 U.S. 174, 176 (1922); Workman, 419 F. App’x at 356 (“The Supreme Court
has consistently recognized that a state may constitutionally require school children to be
immunized.”); see also S.C. Code Ann. § 44-29-10 et seq. (identifying communicable
diseases for which vaccination is required for school attendance in South Carolina).
Indeed, the right to work without a vaccine is far less compelling than the right for
children to attend school without a vaccine because the state requires children to attend
school. Thus, the only option for those parents of children who do not qualify for
medical or religious waivers is to take on the significant cost and burden of home
schooling. In contrast, an employee who objects to the Policies’ vaccine mandate can
elect to work for another employer without such a policy or to work for himself. The
court must be “‘reluctant to expand the concept of substantive due process because
26
guideposts for responsible decision-making in this uncharted area are scarce and open-
ended.’” Glucksberg, 521 U.S. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115,
125 (1992)). This means that courts must “exercise the utmost care whenever we are
asked to break new ground in this field [] lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of [judges].” Id. (internal
quotations and citations omitted); see also Lewis, 523 U.S. at 842 (noting the traditional
reluctance of the Supreme Court to expand the concept of substantive due process). In
light of the caselaw regarding vaccine mandates and the reluctance of courts to expand
the concept of substantive due process, the court finds that plaintiffs have not shown a
likelihood of success in establishing that the Policies infringe on a fundamental right in
the substantive due process analysis.
If plaintiffs fail to clearly show that the Policies infringe on a fundamental right,
the court applies only rational basis review, rather than strict scrutiny. See Dixon, 2021
WL 4750187, at *8–9 (internal quotations omitted) (“Because the right to refuse
vaccination is not a fundamental right, Jacobson essentially applied rational basis
review—which is exactly what the Court does today.”). In other words, the Policies need
not be narrowly tailored to a compelling government interest. Rather, they must only
bear a rational relationship to a legitimate government interest. Rational basis review “is
highly deferential toward the government’s actions. The burden is on the plaintiff to
show the governmental act complained of does not further a legitimate state purpose by
rational means.” Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008).
Under rational basis review, a governmental policy “need not be in every respect
logically consistent with its aims to be constitutional. It is enough that there is an evil at
27
hand for correction, and that it might be thought that the particular legislative measure
was a rational way to correct it.” Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483,
487–88 (1955). Moreover, “[u]nder this test,” defendants’ “action ‘is not subject to
courtroom fact-finding and may be based on rational speculation unsupported by
evidence or empirical data.’” League of Indep. Fitness Facilities & Trainers, Inc. v.
Whitmer, 814 F. App’x 125, 128 (6th Cir. 2020) (quoting FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993)). Additionally, defendants need not “actually articulate at any
time the purpose or rationale supporting” the Policies or vaccine mandates
thereunder. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992).7 The government’s decision
“must be upheld if any state of facts either known or which could reasonably be assumed
affords support for it. Second-guessing by a court is not allowed.” Powers v. Harris, 379
F.3d 1208, 1216-17 (10th Cir. 2004).
Plaintiffs have not clearly shown that the Policies fail to pass muster under
rational basis review. Defendants have provided several rational justifications for the
Policies. These include, inter alia, the health concerns to government employees and
citizens posed by COVID-19, the continued workforce disruption caused by the spread of
COVID-19—particularly among unvaccinated employees, and the financial burden of
implementing safeguards to counteract these risks. The Supreme Court has recognized
that “[s]temming the spread of COVID-19 is unquestionably a compelling interest.”
Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 67; see Cruzan, 497 U.S. at 261 (finding
that the defendants had a legitimate interest in the “protection and preservation of human
7
In this respect, plaintiffs’ argument that the stated purpose of the Policies is only
governmental efficiency—and the Policies do not explicitly state any public health
interest in curbing the spread of COVID-19—is immaterial to the court’s review.
28
life”). As of October 18, 2021, the Centers for Disease Control and Prevention (“CDC”)
reports that there have been 44,801,768 identified cases of COVID-19 in this country,
resulting in 722,212 deaths. CDC, COVID Data Tracker, https://covid.cdc.gov/covid-
data-tracker/ (last visited October 18, 2021). Unlike the first several uncertain months
after COVID-19’s discovery, state and local officials have since acquired more
knowledge and equipped themselves with better tools to reduce viral transmission. Of
these new tools, the most highly regarded is vaccination. The vaccines met the Food and
Drug Administration’s (“FDA”) rigorous scientific standards for safety, effectiveness,
and manufacturing quality needed to support approval or authorization of a vaccine. The
FDA approved the Pfizer-BioNTech vaccine for individuals 16 years of age and older,
after reviewing data that supported the conclusion that the vaccine was both safe and
effective. FDA.GOV, FDA Approves First COVID-19 Vaccine (Aug. 23, 2021),
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-
vaccine. Two additional vaccines, including a traditional viral vector vaccine developed
by Johnson & Johnson, have been made available under FDA emergency use
authorization, as has the Pfizer-BioNTech vaccine for individuals 12 through 15 years of
age. Over 403 million doses of COVID-19 vaccine have been given in the United States
from December 14, 2020, through October 12, 2021. CDC, Safety of COVID-19
Vaccines, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/safety-of-
vaccines.html (last visited Oct. 12, 2021). In light of these circumstances, numerous
courts have recognized that preventing the spread of COVID-19 provides a rational
justification for vaccine mandates. See Dixon, 2021 WL 4750187, at *5 (finding that the
rise of the COVID-19 Delta variant, the potential for the disease to overwhelm healthcare
29
infrastructure, and the increased prevalence of breakout cases provide rational
justifications for a vaccine mandate); Klaassen I, 2021 WL 3073926, at *27 (noting that,
in light of the fact that the “vaccination campaign has markedly curbed the pandemic,”
“Indiana University insisting on vaccinations for its campus communities,” thereby
“stemming illness, hospitalizations, or deaths at the university level[,] hardly proves
irrational”); Harris, 2021 WL 3848012, at *6 (holding that a university’s decision to
mandate vaccines was based “upon both medical and scientific evidence and research and
guidance, and thus is at least rationally related to” the “legitimate interests” of curbing
the spread of COVID-19 and “returning students safely to campus”); America’s Frontline
Doctors v. Wilcox, 2021 WL 4546923, at *3–5 (C.D. Cal. July 30, 2021) (holding that
“there is clearly a rational basis for Defendants to institute the Policy requiring
vaccination” to further the goal of facilitating the “protection of the health and safety of
the University community,” where the policy was “the product of consultation with UC
infections disease experts and ongoing review of evidence from medical studies
concerning the dangerousness of COVID-19 and emerging variants of concern, as well as
the safety and effectiveness of the vaccines”). Rational basis review is a relatively low
bar, and in light of the aforementioned justifications, plaintiffs fail to show that the
Policies are unlikely to survive such review.8 Therefore, plaintiffs cannot show
likelihood of success on their substantive due process claims.
8
Even if the court were to review the Policies under strict scrutiny, the court finds
that plaintiffs have not clearly shown that the Policies are unlikely to withstand such
scrutiny. Again, the Supreme Court recognizes a compelling interest in stemming the
spread of COVID-19. Roman Cath. Diocese of Brooklyn, 141 S. Ct. at 67. The court is
satisfied that the Policies are narrowly tailored to that compelling interest. As counsel for
defendants explained, defendants—like other employers and local and state governments
across the country—employed a variety of measures since the beginning of the pandemic
30
b. Equal Protection
Plaintiffs next allege that defendants violated their equal protection rights under
the Fourteenth Amendment by implementing the Policies. An equal protection claim
arises when, without adequate justification, similarly-situated persons are treated
differently by a governmental entity. U.S. Const. amend XIV. “To succeed on an equal
protection claim, a plaintiff must first demonstrate that he has been treated differently
from others with whom he is similarly situated and that the unequal treatment was the
result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648,
(4th Cir. 2001). When the distinction is based on a “suspect classification,” the
constitutional scrutiny sharpens in focus to determine whether the classification is
narrowly tailored to serve a compelling governmental interest.” See Plyler v. Doe, 457
U.S. 202, 216–17 (1982). When a plaintiff is not a member of a suspect class, he must
prove that the distinction between himself and others similarly situated was not
reasonably related to some legitimate governmental purpose. See Turner v. Safley, 482
U.S. 78, 89 (1987).
Plaintiffs argue that the Policies violate plaintiffs’ rights to equal protection
because they treat vaccinated persons differently than unvaccinated persons, including
those who have natural immunity. Specifically, plaintiffs argue that unvaccinated
to stem the spread of COVID-19. Such efforts included granting employees leave with
pay under quarantine measures, reopening operations in shifts, implementing distancing
and masking requirements, and, finally, encouraging voluntary vaccination. The fact that
South Carolina continues to experience a “high” rate of transmission despite these efforts
supports a conclusion that the vaccine mandates in the Policies are narrowly tailored, and
plaintiffs have not made a clear showing to the contrary. HealthData.gov, COVID-19
State Profile Report – South Carolina, https://healthdata.gov/Community/COVID-19-
State-Profile-Report-South-Carolina/jw8e-8y5f (last visited Oct. 18, 2021).
31
individuals are subject to “different standards to test and to quarantine” than those who
are vaccinated and are ultimately subject to termination under the Policies. Bauer, ECF
No. 17 at 10. Upon review, the court fails to see how the Policies impose any testing or
quarantine requirements at all—much less any that treat vaccinated individuals
differently than unvaccinated. Therefore, this argument offers little support for plaintiffs’
request to enjoin the Policies.
Although the Policies treat unvaccinated individuals differently than those
vaccinated by only subjecting the former to potential termination, such differential
treatment does not target a suspect class. In other words, it does not categorize persons
based on suspect classifications, such as race and national origin, or on quasi-suspect
classifications such as gender and illegitimacy. Accordingly, the court applies rational
basis review, asking whether the government’s classification bears a rational relation to
some legitimate end. See Dixon, 2021 WL 4750187, at *5 (citing Heller v. Doe, 509 U.S
312, 320 (1993)) (noting that because the mayor only sought to distinguish between
vaccinated and unvaccinated individuals, “unless the EEOs overly burden a suspect class
or impinge upon a fundamental right, they are subject to rational basis review.”). To
prevail, plaintiffs must demonstrate that there is no rational basis for the difference in
treatment between them and the vaccinated employees. See Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). For reasons already discussed, plaintiffs have not done
so.
Plaintiffs fail to articulate how defendants’ differential treatment of vaccinated
and unvaccinated personnel is irrational. As of August 2021, the CDC reported that
unvaccinated individuals have a 6.1 times greater risk of testing positive for COVID-19
32
and 11.3 times greater risk of dying from COVID-19 than vaccinated individuals.
CDC, Rates of COVID-19 Cases and Deaths by Vaccination Status,
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status (last visited Oct. 18,
2021). Extensive data supports vaccination as an effective strategy for preventing severe
illness, hospitalization, and death from COVID-19. CDC, COVID-19 Vaccine
Effectiveness, https://covid.cdc.gov/covid-data-tracker/#vaccine-effectiveness (last
visited Oct. 18, 2021). There is evidence that vaccines provide more robust protection
than antibodies from a previous COVID-19 infection. Alyson M. Cavanaugh et
al., Reduced Risk of Reinfection with SARS-CoV-2 After COVID-19 Vaccination —
Kentucky, May–June 2021, 70 MORBITY MORTAL WEEKLY REP. 1081–83 (2021),
http://dx.doi.org/10.15585/mmwr.mm7032e1. Thus, the CDC recommends vaccination
even for individuals who have already been infected with COVID-19 and recovered.
CDC, Frequently Asked Questions about COVID-19 Vaccination,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html (last visited Oct. 19,
2021). In light of this evidence, plaintiffs’ contention regarding the comparative
immunities of COVID-19-recovered individuals and vaccinated individuals are “of no
moment to the instant analysis, as ‘the court doesn’t intervene so long as [Defendants’]
process is rational in trying to achieve public health.’” Valdez, 2021 WL 4145746, at
*5–8 (citing Klaassen I, 2021 WL 3073926, at *38 and Phillips v. City of New York, 775
F.3d 538, 542 (2d Cir. 2015)) (“[P]laintiffs argue that a growing body of scientific
evidence demonstrates that vaccines cause more harm to society than good, but as
Jacobson makes clear, that is a determination for the [policymaker], not the individual
objectors.”)). Therefore, the court finds that the Policies, based on reliable science and
33
medicine, are likely to survive rational basis review such that plaintiffs are unlikely to
prevail on an equal protection claim. See Maniscalco, 2021 WL 4344267, at *5 (finding
a rational basis for the difference in treatment among teachers subject to a vaccine
mandate and other municipal employees who were not when it would “minimize the need
for both students and teachers to miss class due to either infection or quarantine”);
Valdez, 2021 WL 4145746, at *9 (internal citation omitted) (finding that an employer’s
vaccine mandate is “grounded in medicine and science, and thus is rationally related to
Defendants’ legitimate purpose of protecting our community ‘against an epidemic of
disease [that] threatens the safety of its members’”); America’s Frontline Doctors, 2021
WL 4546923, at *3–5 (“The Court finds that there is clearly a rational basis for
Defendants to institute the Policy requiring vaccination, including for individuals who
previously had COVID-19.”).
c. Free Exercise
Plaintiffs’ motions perfunctorily claim that the Policies “conflict[] with the United
States Constitution’s guarantee of . . . free exercise . . . .” Bauer, ECF No. 17 at 4.
However, plaintiffs fail to provide any law or substantive argument on this claim in their
motions for preliminary injunction or replies thereto. Therefore, plaintiffs have failed to
satisfy their burden of showing likelihood of success on the merits of this claim.
To the extent plaintiffs intend their “free exercise” allegation to mean that the
Policies impede on their freedom of speech protected under the First Amendment,
plaintiffs likewise have failed to show likelihood of success on the merits. Confusingly,
plaintiffs assert within their equal protection argument that the Policies “not only
restrict[] free expression of thought and free exchange of ideas, it ultimately restricts
34
freedom to make medical decisions.” Bauer, ECF No. 17 at 11. To be sure, public
employees do not “relinquish First Amendment rights to comment on matters of public
interest by virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140
(1983). However, in considering whether plaintiffs’ First Amendment rights are violated,
[C]ourts must also consider the government’s countervailing interest in

controlling the operation of its workplaces. Just as there is a public interest
in having free and unhindered debate on matters of public importance, the
efficient functioning of government offices is a paramount public interest.
Therefore, a public employee by necessity must accept certain limitations
on his or her freedom. In particular, under the balancing test developed by
the Supreme Court in Pickering[ v. Bd. of Educ., 391 U.S. 563, 573 (1968)]
and Connick[ v. Myers, 461 U.S. 138, 145 (1983)], the First Amendment
does not protect public employees when their speech interests are
outweighed by the government’s interest in providing efficient and effective
services to the public.
Grutzmacher v. Howard County, 851 F.3d 332, 342 (4th Cir. 2017) (internal quotation
marks and citations omitted). Plaintiffs do not articulate the precise idea or statement that
plaintiffs wish to express by virtue of their vaccine opposition and refusal. In any event,
the court finds that plaintiffs are unlikely to succeed on this claim because their right to
express themselves by refusing the COVID-19 vaccine is outweighed by the
government’s interest in protecting their employees and communities from a deadly
infectious disease and providing efficient and effective services to the public. As
defendants explain, when an employee refuses to receive the COVID-19 vaccine, the
defendant employers risk staffing shortages and other workplace inefficiencies.
Defendants have submitted affidavits outlining these negative impacts and explaining the
financial burden the defendant employers, and by extension taxpayers, have faced to date
in connection with efforts to provide coverage for employees who became sick or needed
to quarantine due to infection. Moreover, and perhaps more importantly, these defendant
35
employers have reasonably concluded that they risk endangering their employees and the
citizens who receive their services if they allow some employees to report to work
unvaccinated. Because the vaccine undisputedly reduces the spread of COVID-19, the
government has not only a legitimate interest in limiting its employees’ freedom to
express themselves by vaccine refusal, but a compelling one.
Otherwise, plaintiffs assert in a conclusory manner that “Doctor-patient
communication about medical treatment receives substantial protection under the First
Amendment”; “the State cannot commandeer the doctor-patient relationship to compel a
physician to express its preference to the patient”; and “Request for medical treatment is
protected speech.” Bauer, ECF No. 17 at 11–12. The court need not address these half-
baked arguments. The court will not countenance this so-called “spaghetti approach” to
litigation whereby the parties “heave[ ] the entire contents of a pot against the wall
in hopes that something [will] stick.” Indep. Towers of Wash. v. Washington, 350 F.3d
925, 929 (9th Cir. 2003). Moreover, the court will not attempt to grapple with every hint
of an argument, no matter how poorly developed; as the Fourth Circuit has now
repeatedly explained, judges “are not like pigs, hunting for truffles buried in briefs.
Similarly, it is not our job to [] make arguments for either party.” Hensley v. Price, 876
F.3d 573, 581 (4th Cir. 2017).
2. State Law Claims
Plaintiffs additionally claim that the Policies violate (1) the South Carolina
Constitution’s guarantee of free expression, (2) South Carolina’s Home Rule Act, (3) the
Department of Health and Environmental Control (“DHEC”) General Supervision of
Vaccination, Screening, and Immunization, (4) the common law prohibition against
36
wrongful discharge, and (5) the right to privacy under the South Carolina Constitution.
Upon review, the court finds that none of these claims warrant the imposition of a
temporary injunction.
a. South Carolina Constitution’s Guarantee of Free

Expression
It is unclear from plaintiffs’ motions and replies precisely what argument
plaintiffs attempt to make by invoking the “guarantee of free expression” in the South
Carolina Constitution. As the court can best construe plaintiffs’ briefings, plaintiffs are
simply asserting the same arguments regarding freedom of speech and freedom to express
their opposition to the COVID-19 vaccine discussed supra, but under the South Carolina,
rather than the United States, Constitution. For reasons already explained, plaintiffs are
unlikely to succeed on such a claim under federal law, and plaintiffs do not argue that the
court’s analysis of any freedom of speech or expression claim should differ under state
law. Accordingly, the court likewise finds that plaintiffs are unlikely to succeed on their
state law claim that the Policies impermissibly restrict their freedom of expression.9
9
Plaintiffs also confusingly appeal to the South Carolina “law protecting the free
exercise of religion.” Bauer, ECF No. 17 at 13. Specifically, plaintiffs argue that “‘[a]
test of compelling state interest will be imposed on all state and local laws and ordinances
in all cases in which the free exercise of religion is substantially burdened’ and provides
‘a claim or defense for those whose exercise of religion is substantially burdened by the
State.’” Id. (citing S.C. Code Ann. § 1-32-30). The court can locate no such claim in
plaintiffs’ complaints or, where applicable, amended complaints. Plaintiffs cannot show
likelihood of success on claims not included in their complaints. To the extent plaintiffs
attempt to make this argument under their asserted freedom of expression claims,
plaintiffs have failed to meet their burden of showing likelihood of success on such a
claim. Plaintiffs cite no case law and otherwise make no argument to satisfy this court
that the Policies substantially burden a person’s exercise of religion. Plaintiffs cannot
carry their burden with the bare assertion that the Policies substantially burden their
exercise of religion. Indeed, plaintiffs fail to explain which religion, if any, is
incompatible with the Policies. In any event, the Policies provide a religious exemption
for a “sincerely held religious belief, practice, or observance” that conflicts with the
37
b. South Carolina’s Home Rule Act
Plaintiffs next argue that the Policies contravene South Carolina’s Home Rule
Act. To the court’s dismay, plaintiffs do not provide the court any law regarding the
Home Rule Act—much less properly apply the facts of the instant cases to that law. It
appears that plaintiffs’ argument here is generally that defendants exceeded their
authority in issuing the Policies. However, it is otherwise unclear precisely how
plaintiffs allege that defendants exceeded their authority. For example, in the context of
this argument, plaintiffs assert that “the mandate issued by the North Charleston mayor
substantially burdens religious freedom and bodily autonomy, and circumvents the
scrutiny such a rule would be afforded had it been debated at the level necessary for
adoption of a state law or even a local ordinance.” Bauer, ECF No. 17 at 16. The court
has already addressed plaintiffs’ allegations regarding religious freedom and bodily
autonomy and need not consider plaintiffs’ repackaging of those arguments under this
claim. Moreover, whether the vaccine mandate would have received greater “scrutiny”
had it been debated at the state law or local ordinance level is irrelevant.
Plaintiffs cite to no provision of the Home Rule Act—or any other law—that
requires that the Policies receive any greater public or governmental scrutiny than
defendants provided. For example, the City of North Charleston has a Mayor-Council
form of government subject to the provisions of Chapter 9 of the Home Rule Act. Under
that chapter, Mayor Summey has the power and duty to “direct and supervise the
order. See, e.g., Bauer, ECF No. 4 at 3–4. Plaintiffs fail to clearly show how the Policies
substantially burden their free exercise of religion notwithstanding these religious
exemptions. Therefore, the court finds that plaintiffs have not shown they are likely to
prevail on this claim.
38
administration of all departments, offices and agencies of the municipality,” and he also
has the authority, “when he deems it necessary for the good of the municipality,” to
remove any municipal employee. S.C. Code Ann. §§ 5-9-30(1) and (2). Plaintiffs fail to
cite any authority or otherwise persuade the court that they are likely to prove that Mayor
Summey’s implementation of the Executive Order exceeds those powers. Although
plaintiffs may have preferred that the vaccine mandates be subject to “[o]pen debate
between elected officials,” rather than be enacted pursuant to an administrative directive
authorized by Mayor Summey or pursuant to personnel policies issued by the other
defendant employers, plaintiffs fail to cite any authority requiring such open debate.
Bauer, ECF No. 17 at 16. As such, the court finds that plaintiffs have not met their
burden for a preliminary injunction based on this claim.
c. DHEC’s General Supervision of Vaccination, Screening,

and Immunization
As the court can best construe it, plaintiffs’ claim relating to S.C. Code Ann. § 44-
29-40 is that the state of South Carolina delegated the power to mandate vaccines to
DHEC and gave DHEC sole authority to promulgate regulations relating to vaccinations.
Plaintiffs contend that defendants, in mandating that plaintiffs receive COVID-19
vaccines as a condition of their employment, usurped DHEC’s authority such that the
Policies conflict with state law.
Under § 44-29-40,
The Department of Health and Environmental Control shall have general

direction and supervision of vaccination, screening, and immunization in
this State. The Department of Health and Environmental Control has the
authority to promulgate regulations concerning vaccination, screening, and
immunization requirements.
39
S.C. Code Ann. § 44-29-40. Plaintiffs have not made a clear showing that they are likely
to prevail on this claim. On its face, the statute does not provide that DHEC has
exclusive authority to enact regulations concerning vaccination. It likewise does not
prohibit employers from enacting more restrictive vaccination requirements than DHEC.
DHEC’s own interpretation of its authority is consistent with a finding that § 44-29-40
does not grant it sole authority on all vaccination matters. When asked about its position
regarding employer vaccine mandates, DHEC officials released the following statement:
As background, DHEC does not provide guidance concerning requiring

COVID-19 vaccinations. Decisions about individual requirements are best
determined by employers. DHEC does encourage COVID-19 vaccinations
for all eligible residents. These vaccines are safe, effective and are the
number one way for South Carolina and the rest of the nation to end this
pandemic once and for all.
Bauer, ECF No. 14-5. In light of this official statement and plaintiffs’ arguments before
the court, the court cannot find that plaintiffs are likely to succeed in proving that
defendants usurped DHEC’s general supervisory vaccination authority in issuing the
Policies.10
10
Plaintiffs also argue that the Policies are in direct contravention of Governor
Henry McMaster’s executive order 2021-23, which states that “the State will not mandate
that South Carolinians receive such vaccines.” Exec. Order No. 2021-21 (May 1, 2021),
https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2021-05-
11%20FILED%20Executive%20Order%20No.%202021-23%20-
%20Emergency%20Measures%20Regarding%20Face%20Coverings%20Vaccine%20Pa
ssports%20%20Other%20Matters.pdf (last visited Oct. 13, 2021). It is unclear under
which cause of action asserted in plaintiffs’ complaints this argument falls. In any event,
plaintiffs are unlikely to prove the Policies are unlawful on this basis. While the
governor’s executive order noted that the state of South Carolina would not mandate that
all South Carolinians receive the COVID-19 vaccination, it did not prohibit any other
person, entity, or official from doing so. The lack of an express prohibition on vaccine
mandates in the executive order is significant, particularly in light of other express
prohibitions set forth in Governor McMaster’s executive order. For example, in the
executive order, Governor McMaster explicitly states, “I hereby prohibit any agency,
department, official, or employee of the State of South Carolina, or any political
40
d. Wrongful Discharge
Finally, plaintiffs argue that their termination for vaccine refusal pursuant to the
Policies would amount to wrongful discharge for their political beliefs. As previously
mentioned, plaintiffs argue that South Carolina recognizes a public policy exception to
at-will employment. Specifically, under S.C. Code Ann. § 16-17-560, it is “unlawful for
a person to . . . discharge a citizen from employment or occupation . . . because of
political opinions or the exercise of political rights and privileges guaranteed to every
citizen by the Constitution and laws of the United States or by the Constitution and laws
of this State.” As discussed in the context of plaintiffs’ due process claims, plaintiffs
explain that they “do not agree with [the COVID-19 vaccine] politically,” and their
vaccine refusal is “expressive speech in the form of opposition to the COVID-19 vaccine,
and expressive conduct in opposition to the vaccine mandate.” Bauer, ECF No. 4 at 3–4.
Therefore, plaintiffs argue that termination based on the Policies’ vaccine mandates
amounts to termination for a political belief.
Plaintiffs have not shown they are likely to prevail on this claim for two reasons.
First, plaintiffs’ claim relies on the mistaken assumption that § 16-17-560 extends to all
opinions and expressions protected under the First Amendment of the United States
Constitution (or the Constitution of the state of South Carolina). However,
“the political opinion and expression covered by section 16–17–560 extends only to
matters directly related to the executive, legislative, and administrative branches of
subdivision thereof, from developing, issuing, or requiring presentation of a Vaccine

Passport, as further defined herein.” Id. In light of the express prohibitions enumerated
in the governor’s executive order, the court declines to read Governor McMaster’s
statement that the “State will not mandate” that South Carolinians receive COVID-19
vaccines as a prohibition on similar employer-implemented mandates.
41
Government, such as political party affiliation, political campaign contributions, and the
right to vote.” See Vanderhoff v. John Deere Consumer Prod., Inc., 2003 WL 23691107,
at *2 (D.S.C. Mar. 13, 2003) (referencing Culler, 422 S.E.2d at 92–93). Plaintiffs cite no
evidence whatsoever in support of the notion that vaccination status is tied to a particular
political belief, much less one related to the executive, legislative, and administrative
branches of government. Plaintiffs likewise cite no authority or caselaw to suggest that
South Carolina courts would recognize vaccine refusal as a “political belief” subject to
any public policy exception to at-will employment. The court finds that plaintiffs’
vaccine refusal likely is not the type of politically-based belief or opinion contemplated
by § 16-17-560, and plaintiffs fail to make a clear showing to the contrary.
Second, the public policy exception to at-will employment does not apply when
“the employee has an existing remedy for a discharge that allegedly violates rights other
than the right to the employment itself.” Epps, 405 S.E.2d at 387. In this case, plaintiffs
claim that their discharge would violate their constitutional rights, not just their right to
employment. The United States Supreme Court has recognized § 1983 as a viable
method for aggrieved public at-will employees to bring claims for damages from
employment decisions that violate the United States Constitution. See generally Rutan v.
Republican Party of Ill., 497 U.S. 62 (1990). And, the South Carolina Supreme Court has
found that, in the context of the public policy exception, § 1983 is an existing remedy that
bars an employee from alleging that his discharge violated his constitutional rights under
the public policy exception. Epps, 405 S.E.2d 386. Plaintiffs have asserted § 1983
claims in this action and therefore cannot clearly show likelihood of success on a
wrongful discharge claim.
42
Finally, even if “political opinions” or “political rights” encompass vaccine
refusal and plaintiffs did not have an existing legal remedy, plaintiffs have not clearly
shown that the termination provisions in the Policies are based on their political opinions
or beliefs. On the contrary, defendants have presented substantial evidence that the
Policies are based not on the fact that plaintiffs hold a certain belief regarding
vaccination, but rather on the legitimate threat that their unvaccinated condition poses to
public safety and effective governmental operations. Therefore, plaintiffs have not
shown that they are likely to succeed in proving wrongful discharge based on their
political beliefs.
e. South Carolina’s Right to Privacy
Plaintiffs do no more than merely reference the right to privacy under Article I,
§ 10 of the South Carolina Constitution in their briefings on the motions for preliminary
injunctions. See, e.g., Bauer, ECF No. 8 at 14. Despite the fact that the South Carolina
right to privacy is not mentioned anywhere in plaintiffs’ complaints and despite providing
the court little to no substantive argument on the matter prior to the hearing, counsel for
plaintiffs’ oral argument at the hearing surprisingly focused heavily, if not primarily, on
the South Carolina right to privacy. As the court has already observed, plaintiffs cannot
show likelihood of success on the merits of a claim that is not asserted in their
complaints. However, affording defendants the benefit of every doubt, the court
nevertheless briefly addresses plaintiffs’ argument regarding the South Carolina right to
privacy.
43
Article I, § 10 of the South Carolina Constitution provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures and unreasonable invasions of privacy shall not be violated . . . .”
S.C. Const. art. I, § 10 (emphasis added). The South Carolina Supreme Court has defined
the “right to privacy” as the right of an individual to be let alone and to live a life free
from unwarranted publicity. Sloan v. S.C. Dep’t of Pub. Safety, 586 S.E.2d 108 (S.C.
2003). However, “‘one of the primary limitations placed on the right of privacy is that it
does not prohibit the publication of matter [sic] which is of legitimate public or general
interest.’” Soc’y of Pro. Journalists v. Sexton, 324 S.E.2d 313, 315 (S.C. 1984)
(quoting Meetze v. Associated Press, 95 S.E.2d 606 (S.C. 1956)). Indeed, the South
Carolina Supreme Court has held that, as a matter of law, “if a person, whether willingly
or not, becomes an actor in an event of public or general interest, ‘then the publication of
his connection with such an occurrence is not an invasion of his right to privacy.’” Doe
v. Berkeley Publishers, 496 S.E.2d 636, 637 (S.C. 1998) (quoting Meetze, 95 S.E.2d at
609).
As the court has discussed throughout its order, efforts to reduce the spread of
COVID-19 and thereby ensure effective and efficient government operations are matters
of legitimate public and general interest. As such, defendants’ efforts to further these
interests do not invade on plaintiffs’ right to privacy. In this regard, the instant action
differs from the facts of the single case plaintiffs cite in support of their South Carolina
right to privacy argument, Singleton v. State, 437 S.E.2d 53, 61 (S.C. 1993). In
Singleton, the Supreme Court of South Carolina considered whether an incompetent
inmate on death row could receive forced medication solely to facilitate his execution.
44
The court held that “Federal due process and our own South Carolina Constitution
require that an inmate can only receive forced medication where the inmate is dangerous
to himself or to others, and then only when it is in the inmate’s best medical interest.”
Singleton, 437 S.E.2d at 61. Similar to the federal due process cases involving forced
medical treatment of inmates discussed previously, Singleton is inapposite to this action.
Here, defendants have concluded, based on the scientific evidence as it stands, that
unvaccinated employees present a danger to themselves and others in the current climate
of the pandemic. Moreover, plaintiffs have not explained how it is not in their medical
best interests to receive the vaccine, and to the extent that it is not, the Policies provide
for medical exemptions. Under these circumstances, the holding in Singleton does not
suggest that the vaccine mandates in the Policies implicate the South Carolina right to
privacy.11 Moreover, as the court has already explained, plaintiffs are not imprisoned and
being forced to receive medication against their will. Therefore, even if plaintiffs
asserted a claim for violation of the South Carolina right to privacy, the court does not
find that plaintiffs have made a clear showing of likelihood of success on such a claim.
Overall, plaintiffs have not met their burden of clearly showing likelihood of
success on any of their federal or state law claims. Therefore, plaintiffs’ requests for
preliminary injunctions fail at the first prong of the Winter test.
11
If vaccine mandates did implicate the right to privacy in South Carolina,
plaintiffs fail to explain how the widely accepted vaccine requirements for school
children do not violate that right but the employer COVID-19 mandates under the
Policies somehow do.
45
B. Irreparable Harm
Since plaintiffs’ arguments on the likelihood of success on the merits fail, the
remaining factors need only be addressed briefly. The second prong of the Winter test—
irreparable harm—is an “indispensable” requirement for a preliminary injunction, and in
the absence of irreparable harm, injunctive relief cannot be granted. D.T. v. Sumner
Cnty. Schs., 942 F.3d 324, 326 (6th Cir. 2019). In plaintiffs’ view, the Policies leave
them with effectively two options: receive the COVID-19 vaccine and give up their
constitutionally protected rights to bodily autonomy and privacy, or refuse to receive
the COVID-19 vaccine and risk losing their jobs, a constitutionally protected property
interest. As such, plaintiffs argue that in either option, their constitutional rights will be
infringed upon, causing them irreparable harm. The court disagrees and finds that
plaintiffs have failed to show that irreparable harm will result in the absence of injunctive
relief, weighing heavily against the grant of such relief.
First, for an injury to be irreparable, the injury resulting from the denial of
injunctive relief cannot be “fully compensable by monetary damages.” Overstreet v.
Lexington-Fayette Urb. Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). “Mere injuries,
however substantial, in terms of money, time and energy necessarily expended in the
absence of a stay, are not enough. The possibility that adequate compensation or other
corrective relief will be available at a later date, in the ordinary course of litigation,
weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61,
90 (1974); see Winter, 555 U.S. at 22. As such, loss of employment is not considered to
be an irreparable injury because it is fully compensable by monetary damages. See,
e.g., Seery v. DePuy Orthopaedics, Inc., 2014 WL 12609705, at *1 (D.S.C. Dec. 23,
46
2014) (finding that loss of income payments “are easily calculated and compensated; they
are not irreparable”); Hayes v. City of Memphis, 73 F. App’x 140, 141 (6th Cir. 2003).
In fact, wrongful discharge claims exist for that very reason—whether brought under
state or federal law, a wrongfully terminated plaintiff can receive monetary damages to
compensate for their loss of employment. Therefore, plaintiffs fail to make a clear
showing of irreparable harm based on their loss of employment under the Policies. See
Valdez, 2021 WL 4145746, at *12 (finding that being “terminated/prevented from
working as a nurse [under a vaccine mandate] does not equate to irreparable harm”).
Indeed, at least two other federal district courts have explicitly held that loss of
employment due to non-compliance with a COVID-19 vaccine mandate does not
constitute irreparable harm. See id.; Norris, 2021 WL 3891615, at *3.
Second, as discussed in detail supra, plaintiffs’ alleged constitutional injuries do
not amount to irreparable harm. “[W]hen a plaintiff seeks injunctive relief based on an
alleged constitutional deprivation, ‘the two prongs of the preliminary injunction threshold
merge into one . . . in order to show irreparable injury, plaintiff must show a likelihood of
success on the merits.’” Page v. Cuomo, 478 F. Supp. 3d 355, 364 (N.D.N.Y. 2020)
(quoting Turley v. Giuliani, 86 F. Supp. 2d 291, 295 (S.D.N.Y. 2000)). For reasons
previously stated, plaintiffs have not clearly shown that the harm they are facing is the
result of constitutional violations. Therefore, the irreparable harm factor weighs against
granting a preliminary injunction. See Legacy Church, Inc. v. Kunkel, 455 F. Supp. 3d
1100, 1160–64 (D.N.M. 2020); Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d
214, 242 (D. Md. 2020), appeal dismissed, 2020 WL 6787532 (4th Cir. July 6, 2020).
47
C. Balance of Equites and Public Interest
Finally, the balance of equities and public interest prongs of the Winter test tip in
defendants’ favor. “[C]ourts must balance the competing claims of injury on each party
of either granting or withholding the requested relief, paying particular regard to the
public consequences.” Winter, 555 U.S. at 22. It is clear that, through the Policies,
defendants are promoting a strong public interest—combatting the spread of COVID-19,
a virus that has infected and taken the lives of thousands of South Carolina residents and
disrupted not only defendants’ effective provisions of services but societal operations in
general. No matter any individual’s stance on COVID-19, every person, including
plaintiffs in these cases, can agree that ending the COVID-19 pandemic is in the public’s
collective best interest for purposes of balancing equities. See Perez-Perez v. Adducci,
459 F. Supp. 3d 918, 931 (E.D. Mich. 2020) (“Society benefits by stemming the
proliferation of COVID-19, thereby ‘flattening the curve,’ preventing strain on medical
centers and hospitals, and ultimately reducing death or long-term injury from COVID-19-
related lung damage.”); see also Neinast v. Bd. of Trs., 346 F.3d 585, 592 (6th Cir. 2003)
(recognizing public health and safety as legitimate government interests); Thakker v.
Doll, 451 F. Supp. 3d 358, 372 (M.D. Pa. 2020) (“Efforts to stop the spread of COVID-
19 and promote public health are clearly in the public’s best interest . . . .”); Kheriaty,
2021 WL 4714664, at *9 (holding that efforts to protect a campus community of more
than half a million students, faculty, and staff from a deadly infectious disease “far
outweigh[]” the harm of employer-mandated vaccination). Plaintiffs’ requested relief
here would weaken the efforts of defendants to carry out that goal. As such, enjoining
the Policies is not in the public interest. See Bruesewitz v. Wyeth LLC, 562 U.S. 223,
48
226 (2011) (internal quotations omitted) (describing “the elimination of communicable
diseases through vaccination” as “one of the greatest achievements of public health in the
20th century”).
To be sure, plaintiffs who oppose vaccination may be harmed by the Policies—
whether by termination or by their reluctant submission to vaccination to retain their jobs.
But defendants’ “interest in combatting COVID-19 is at least equally [as] significant” as
the harm plaintiffs face in choosing between receiving a medically-approved vaccination
or suffering employment-related consequences. Columbus Ale House, Inc. v. Cuomo,
495 F. Supp. 3d 88, 94 (E.D.N.Y 2020) (quoting League of Indep. Fitness Facilities, 814
F.App’x at 129). While plaintiffs may remain unvaccinated at their own risk, the balance
of equities and public interest do not require defendants to allow plaintiffs to spread that
risk in their workplace and, by extension, into the communities they serve. Reasonable
minds may disagree on the public health consequences of the Policies. For example,
plaintiffs suggest that there has been a “precipitous decline in cases” without any
imposed vaccine mandates. Bauer, ECF No. 17 at 22 (emphasis omitted). However,
“[w]here good faith arguments can be made on both sides of the many issues raised by
the pandemic,” it is up to local government and employers, “not the courts, to balance the
competing public health and business interests.” Columbus Ale House, 495 F. Supp. 3d
at 95. Based on the competing interests identified, the court finds that plaintiffs have
failed to make a clear showing that the balance of harms weighs in their favor or that
granting the requested injunction best serves the public interest. See ETP Rio Rancho
Park, 2021 WL 765364, at *57 (holding that “the threatened injuries—financial injuries
and possible permanent business closure—do not outweigh possible damage—
49
increased COVID-19 spread leading to sickness, hospitalizations, and death—to the
Defendants,” and “for similar reasons,” the requested injunction “would be adverse to the
public interest”); Dixon, 2021 WL 4750187, at *14; Maniscalco, 2021 WL 4344267, at
*4; Valdez, 2021 WL 4145746, at *13.
In light of plaintiffs’ failure to show that their claims are likely to be meritorious,
the balance of hardships that weighs in defendants’ favor, and the strong public interest
that weighs against enjoining the Policies, the court finds that a preliminary injunction is
not appropriate in this case. In denying plaintiffs’ motions, this court is not impugning
either the integrity or the sincere nature of plaintiffs’ beliefs. However, it is not the
court’s role to determine and impose the employer policies that best strike the balance of
the competing interests of a pandemic that has plagued not just this state or country, but
the world, for almost two years. Irrespective of politics, the court has evaluated and
analyzed the law and the legal arguments raised by both sides. Unfortunately for
plaintiffs, they have not stated a viable legal theory in support of an injunction, as each of
the factors required to be considered, individually and collectively, weigh against the
grant of injunctive relief.
IV. CONCLUSION
For the reasons set forth above, the court DENIES the motions for preliminary
injunction in each of the above-captioned cases.
50
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
October 21, 2021

Charleston, South Carolina
51

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2:21-cv-03178-DCN Date Filed 10/21/21 Entry Number 13 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT

SEAN BAUER, GIOVANNI BROWN, )

VICTOR KRUZINSKY, and WILLIAM )

mandatory COVID-19 vaccine requirements on their employees and other affiliated

A. The City of North Charleston Executive Order

On September 1, 2021, Mayor R. Keith Summey (“Mayor Summey”), in his

mandatory COVID-19 vaccine requirement on all City of North Charleston employees,

vaccinated or have submitted a request for an exemption by November 5, 2021. The

policy provides a process by which employees can request an exemption based on

of North Charleston (collectively, the “North Charleston plaintiffs”)1 filed for

4. On September 24, 2021, the North Charleston defendants responded in opposition,

Bauer, ECF No. 17.

B. The City of Charleston Personnel Policy

On September 3, 2021, the City of Charleston announced the adoption of a new

personnel policy imposing a mandatory COVID-19 vaccine requirement on all

employees, volunteers, interns, and agency temporary employees of the City of

compliance is a condition of continued employment and sets the compliance date as no

other specified circumstances.

Certain individuals allegedly subject to the City of Charleston’s personnel policy

Tecklenberg, (together, the “Charleston defendants”) on September 23, 2021 in the

Charleston County Court of Common Pleas. Subsequently, the Charleston defendants

2:21-cv-03137-DCN (D.S.C. 2021) (“Gdovicak”), ECF No. 2. The Charleston plaintiffs

6. On October 13, 2021, the Charleston defendants responded in opposition, Gdovicak,

C. County of Charleston Personnel Policy

contracted employees, and agency temporary employees of the Charleston County

D. St. John Fire District Personnel Policy

other specified circumstances.

District’s appointed commission (collectively, the “District defendants”) on September

replied, Herndon, ECF Nos. 19 and 21.

District plaintiffs’ (collectively, “plaintiffs”) motions for preliminary injunction in all

“The purpose of a preliminary injunction is merely to preserve the relative

prohibiting the North Charleston, Charleston, County, and District defendants

court discusses each prong in turn.

A. Likelihood of Success on the Merits

addressed in turn below.

government official who infringes on a constitutionally protected right. Elrod v. Burns,

constitutional violations warrant enjoining the Policies.

Lewis, 523 U.S. 833, 845–46 (1998).

concept than procedural; it is an absolute check on certain government actions

property.” Chavez-Rodriguez v. City of Santa Fe, 2008 WL 5992271, at *6 (D.N.M. Oct.

i. Procedural Due Process

court construes these allegations as procedural due process claims. To demonstrate

their continued employment with the respective governmental entities.

although a property interest in employment can be created by statute, ordinance, or

repeatedly made it clear that at-will employees lack an enforceable expectation of

continued employment (i.e., a property interest) and, consequently, cannot maintain a

based on their employment discharge.” Williams v. Strickland, 1993 WL 153915, at *4

position of employment); Thompson v. Richland Cnty. Sch. Dist. One, 2018 WL

because plaintiff “fail[ed] to identify any employment policy or mutually explicit

understanding that would support a claim of entitlement to her employment . . . she is

her employment contract to be renewed”); Nkwocha v. S.C. State Univ., 2014 WL

1278006, at *8 (D.S.C. 2014) (finding that a non-tenured, at-will employee employed

interest in continued employment).

Defendants have presented to the court various signed documents whereby

protected by the constitution to refuse it.” Bauer, ECF No. 17 at 9–10.

South Carolina law does indeed recognize an exception to employment-at-will

status where an employee is discharged in contravention of South Carolina public