PEREZ v. BECERRA
1:21-cv-02039
D.D.C.Apr 13, 2022Background
- Pro se plaintiffs Jose and Nancy Perez sued HHS challenging COVID-19 policies, seeking to avoid COVID-19 vaccination and to rescind or limit HHS authority (including ending gain-of-function research and recalculating COVID statistics under the PRA and IQA).
- Plaintiffs asked for declaratory relief that HHS cannot announce a public health emergency or force vaccination; requested serological testing and BCG vaccination if no COVID antibodies; and sought a vaccine passport and informational remedies.
- HHS moved to dismiss under Rule 12(b)(1) for lack of Article III standing and failure to state a claim; the motion was ripe and plaintiffs filed responses but did not address all standing arguments.
- The district court found plaintiffs alleged no HHS regulation or imminent requirement forcing them to vaccinate or wear masks, so they lacked a concrete, particularized injury traceable to HHS.
- The court also held plaintiffs’ informational claims under the PRA and IQA failed because those statutes do not create private rights of action and because plaintiffs did not assert an informed-consent injury relevant to them.
- The court granted HHS’s motion to dismiss and denied Virna Fender’s motion to intervene for lack of a legally protected interest in this action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge vaccine/mask mandates and vaccine passports | Perez: HHS requires vaccination and masks and federal actions lead third parties to demand vaccine passports, injuring travel and liberty | HHS: No HHS regulation requires Perez to vaccinate or wear masks; alleged harms are speculative or caused by states/third parties | No standing — plaintiffs failed to show concrete, imminent injury traceable to HHS or redressable by the court |
| Standing to challenge HHS research funding and to invalidate 18 U.S.C. § 177(b) | Perez: HHS funded gain-of-function research that engineered COVID-19; seeks to enjoin GOF and declare §177(b) unconstitutional | HHS: Alleged harms are generalized grievances affecting the public, not particularized injuries to Perez | No standing — claims are generalized and do not confer Article III standing |
| Informational injury under the PRA/IQA and informed-consent claim | Perez: HHS engaged in misinformation and failed PRA/IQA processes, depriving them of accurate information needed for informed consent | HHS: IQA and PRA do not create private rights; plaintiffs do not seek vaccination so informed-consent theory is inapplicable | No standing and no private right of action under IQA/PRA; informational claim fails |
| Motion to intervene by Virna Fender | Fender: As a nurse whose employer requires COVID vaccination (based on CMS/HHS rule), she seeks to protect her interests | HHS/Perez: Case does not involve CMS rule, Medicare/Medicaid funding, or CHCC employer; this action does not threaten Fender’s legal interests | Denied — Fender lacks a legally protected interest in this litigation and intervention would not be appropriate |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized injury and traceability)
- Sabre, Inc. v. DOT, 429 F.3d 1113 (D.C. Cir.) (plaintiff must show standing for each claim and relief)
- Davis v. Fed. Election Comm’n, 554 U.S. 724 (standing for each form of relief)
- Arpaio v. Obama, 797 F.3d 11 (D.C. Cir.) (plaintiff bears burden to establish jurisdiction/standing on 12(b)(1))
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards—courts need not accept legal conclusions)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standards)
- Erickson v. Pardus, 551 U.S. 89 (pro se filings are liberally construed)
- Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146 (D.C. Cir.) (consider pro se filings and related submissions)
- Miss. Comm’n on Env’t Quality v. EPA, 790 F.3d 138 (D.C. Cir.) (IQA does not create private rights of action)
- Karsner v. Lothian, 532 F.3d 876 (D.C. Cir.) (requirements for intervention under Rule 24)
- Biden v. Missouri, 142 S. Ct. 647 (Supreme Court stayed injunctions against HHS/CMS health-care worker vaccine rule)