Court filing
Appellants' Reply Brief — Donovan v. Biden (9th Cir.)
Filed January 23, 2023 in Donovan v. Biden; one of 5 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the Ninth Circuit |
|---|---|
| Filed | 2023-01-23 |
Full text
No. 22-35474
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID G. DONOVAN, et al.
Plaintiffs-Appellants,
v.
JOSEPH R. BIDEN, et al.
Defendants-Appellees.
On Appeal from the United States District Court
for the Eastern District of Washington
No. 4:21-cv-05148-TOR
Hon. Thomas O. Rice
APPELLANTS’ REPLY BRIEF
Nathan J. Arnold
Arnold & Jacobowitz PLLC
2701 First Avenue, Suite 200
Seattle, WA 98121
(206) 799-4221
Nathan@CAJlawyers.com
Simon P. Serrano
Silent Majority Foundation
5238 Outlet Dr
Pasco, WA 99301-8969
(509) 567-7083
pete@silentmajorityfoundation.org
Attorneys for Appellants
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TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .................................................................................. iv
I.
INTRODUCTION ........................................................................................... 1
II.
REPLY ARGUMENT ..................................................................................... 5
A. The District Court had Subject Matter Jurisdiction over the Contractor
Employee Appellants' Claims .......................................................................... 5
B. The Executive Orders are Not Authorized by the Procurement Act ............
......................................................................................................................... 8
C. Appellants Sufficiently Plead RFRA Claims............................................12
D. Appellees Err in Dismissing the Major Questions Doctrine ....................16
III.
CONCLUSION ..............................................................................................19
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TABLE OF AUTHORITIES
Cases
AFL-CIO v. Kahn, 618 F.2d 784, 793 (D.C. Cir. 1979) ..........................................12
Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002, 1006 (9th Cir.2003))................. 7
BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) .............................
.......................................................................................................................13
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 n.3, 726, 728 (2014) ..........
.......................................................................................................................14
Cutter v. Wilkinson, 544 U.S.(2005) ........................................................................14
Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973) .........................................7, 8
Doster v. Kendall, 54 F.4th 398, 421 (6th Cir. 2022) ........................... 2, 3, 4, 13, 15
Employment Division v. Smith, 494 U.S. 872 (1990) ....................................... 14, 15
Georgia v. Biden, No.: 21-14269, * 27, 11th Circuit August 26, 2022) .....................
.............................................................................................................. 2. 8, 18
Georgia v. President of the United States, 46 F.4th 1283, 1293 (11th Cir. 2022). .....
.......................................................................................................... 2, 8, 9, 18
Goldman v. Weinberger, 475 U.S. (1986) ...............................................................15
Kentucky v. Biden, 23 F.4th 585, 609–10 (6th Cir. 2022). ....................... 8, 9, 10, 17
Louisiana v. Biden, 55 F.4th 1017, 1033 (5th Cir. 2022) ................... 2, 9, 11, 12. 17
Maracich v. Spears, 570 U.S. (2013) ......................................................................12
Sambrano v. United Airlines, Inc., 21-11159, 2022 WL 486610, at *8 (5th Cir.
Feb. 17, 2022) ................................................................................................13
Tanzin v. Tanvir, 141 S. Ct ........................................................................................ 6
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 815–16 (2000) ................... 3
U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (5th Cir. 2022) ................................ 6
UAW-Labor Emp. and Training Corp. v. Chao, 325 F.3d 360, 366-67 (D.C. Cir.
2003) ....................................................................................................... 10, 12
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Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) ................................................ 7
Statutes and Regulations
40 U.S.C. § 101 ......................................................................................................8, 9
42 U.S.C. § 2000bb .................................................................................................... 1
42 U.S.C. § 2000bb-1(a) ..........................................................................................14
42 U.S.C. § 2000bb-1(b) ............................................................................................ 3
5 U.S.C. § 551 ............................................................................................................ 8
86 Fed. Reg. at 50,985 .............................................................................................10
EO 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors ....................................................................................2, 7
Exec. Order No. 11,246, 30 Fed. Reg. 12,319, 12,319 (Sept. 28, 1965) (forbidding
civilian contractors from discriminating on the basis of race, creed, color, or
national origin); Exec. Order No. 12,800, 57 Fed. Reg. 12,985, 12,985 (Apr.
14, 1992) .......................................................................................................... 9
Other Authorities
Religious Land Use and Institutionalized Persons Act ("RLUIPA") ............... 13, 14
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I.
INTRODUCTION
The District Court had subject matter jurisdiction over the Plaintiffs-
Appellants. The Civil Service Reform Act does not apply to the Contractor
Employee Appellants; and Appellees concede that seven of the Contractor Employee
Appellants alleged harm sufficient for standing. Appellees, like the District Court,
erroneously read the Second Amended Complaint with a jaundiced and skeptical eye
and infer that the “remaining plaintiffs…have not had their requests conclusively
resolved.” Appellee’s BR., 13-14. Even were that the case, Appellants’ Free
Exercise rights were violated, under both the First Amendment of the United States
Constitution and the Religious Freedom Restoration Act, 42 USC § 2000bb, et seq.
(“RFRA”).
Furthermore, most if not all the other Appellants, pled sufficient facts to
demonstrate standing based on the Hobson’s Choice presented by the Executive
Orders (“EO”): Appellants were required to either violate their religious beliefs or
become, and remain, subject to Defendants’ coercive threat to their employment. See
ER026–120 (Second Amended Complaint alleging Appellants’ individualized
circumstances).
Appellants also sufficiently plead claims to warrant relief under the
Procurement Act. As the Eleventh and Fifth Circuit Courts of Appeal recently held,
unlimited Presidential power to regulate every aspect of the lives of federal
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contractors and their employees exceeds the scope of the Procurement Act, which
merely authorizes the President to set necessary policy to improve economy and
efficiency in federal contracting. The Eleventh Circuit held that the “delegation to
carry out those provisions does not grant the President free-wheeling authority to
issue any order he wishes relating to the federal government’s procurement system.
What he can lawfully carry out under § 121(a) are the provisions in a specified part
of the U.S. Code.” Georgia v. President of the United States, 46 F.4th 1283, 1293
(11th Cir. 2022). The Fifth Circuit held that:
Congress has not spoken clearly to authorize such a dramatic shift in
the exercise of the President’s power under the Procurement Act. Nor
are historical exercises of that power sufficient to demonstrate a long-
standing understanding that the Procurement Act could be used in this
way. The President’s use of procurement regulations to reach through
an employing contractor to force obligations on individual employees
is truly unprecedented. As such, Executive Order 14042 is unlawful,
and the Plaintiff States have consequently demonstrated a strong
likelihood of success on the merits.
Louisiana v. Biden, 55 F.4th 1017, 1033 (5th Cir. 2022).
Appellants’ allegations that they each asked for religious exemptions, which
were, in most instances, nominally granted, sufficiently pleads a substantial burden
on their religious freedom. Like the Air Force personnel in Doster v. Kendall who
were required by the Air Force “to participate in deposition-style inquiries into their
beliefs,” Plaintiffs were required to place their religious beliefs on display to
unknown members of management who made the determination of whether the
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beliefs were adequately “sincere.” Doster v. Kendall, 54 F.4th 398, 421 (6th Cir.
2022). Appellees now double down on their invasion of rights by demanding that
Appellants submit their beliefs for judicial review.
Under RFRA, once an individual claims Government discrimination, the
burden shifts to the Government to pass the rigorous “strict-scrutiny” standard,
which is a “gauntlet” the Government will successfully run “only in ‘rare cases.’”
Doster, 54 F.4th at 419 (quoting Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)). Under the
strict scrutiny standard, the Government must show a compelling interest in its
action and then “prove that its action qualifies as the ‘least restrictive means’ to
further its interest.” Id. at 420 (quoting 42 U.S.C. § 2000bb-1(b)(2)). Moreover, the
Government’s “interest” must be real, not “made-for-litigation.” Id. The “least
restrictive means” test requires a showing by the Government “that every other
possible ‘alternative will be ineffective to achieve its goals,” and “if any less-
restrictive alternative exists, the government ‘must use it.’” Id. (quoting United
States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 815–16, 120 S.Ct. 1878, 146 L.Ed.2d
865 (2000)).
Here, Appellees implemented the Orders, which mandated medical
procedures from which Appellants sought exemptions on religious bases, and there
is no plausible claim that Appellants applied the least restrictive means to advance a
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legitimate government interest. As with Schelske v. Austin, the Government cannot
meet its “burden by pointing to the need for military [or mission] readiness and the
health of its force” as such “generalized interests are insufficient.” Rather, the
Government “must justify denying these particular plaintiffs’ religious exemptions
under current conditions.” Schelske v. Austin, No. 6:22-CV-049-H, 2022 U.S. Dist.
LEXIS 229432, at *3 (N.D. Tex. Dec. 21, 2022); and see Doster, 54 F.4th at 421
(“Under RFRA, however, the Air Force must show that it has a compelling interest
in refusing a ‘specific’ exemption.”)
Where Appellants expressly alleged that the vaccine mandate does not prevent
the spread of COVID-19 and raised specific ways the mandate could have been more
narrowly tailored to avoid infringing on their rights, Opening Br. at 47–51,
Appellees must refute these assertions. Arguing that the EOs assist in meeting
mission “readiness” falls woefully short of Appellees’ burden. As the Sixth Circuit
held, the Government “bears the burden of showing that no alternative means exist
for each Plaintiff.” Doster, 54 F.4th at 425 (citing Ramirez v. Collier, ––– U.S. ––,
142 S. Ct. 1264, 1281, 212 L.Ed.2d 262 (2022).
As Appellees have conceded that the challenged EOs and the underlying
vaccine failed to prevent the spread of COVID-19, Appellees have failed to carry
their threshold burden of showing that the EOs were the least restrictive means. For
these reasons, the District Court’s erroneous decision must be overturned.
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II.
REPLY ARGUMENT
A.
The District Court had Subject Matter Jurisdiction over the
Contractor Employee Appellants’ Claims.
Appellees concede that “seven contractor plaintiffs alleged that they suffered
a concrete and imminent threat of injury sufficient to establish subject-matter
jurisdiction.” Appellees’ Br. at 27. While Appellees did not identify these specific
Appellants, six Contractor Appellants are listed in the Second Amended Complaint,
id., and a seventh federal employee is identified. See 2 ER 248 ¶ 67. As to at least
the six Contractor Appellants, there seems to be no dispute that they have standing,
and that the District Court had subject matter jurisdiction over their claims.
All, or nearly all of the other 300 Contractor Employee Appellants, also have
standing. Appellees mischaracterize the record by arguing that, for instance, ¶ 73 of
the Second Amended Complaint identifies an Appellant who has “not requested
exemptions.” (Appellees’ Br. at 26). In fact, the Second Amended Complaint
alleges in plain language that Appellant Diedrich “submitted a religious exemption
[request] on October 20, 2021” and received a temporary, conditional
accommodation from his employer. 2 ER 44–45 ¶ 73. Appellants unambiguously
pled the temporary, transitory, discretionary, and conditional nature of Diedrich and
other Appellants’ accommodations. Id.; 2-ER-031–34, 038, 046–49, 053–55, 058–
59, 082, 087–94, 243, 244, 253, 258, 26, 261, 263, 265, 271, 276.
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Likewise, despite Appellees’ vague reference to “many contractor plaintiffs
with pending exemption requests” (Appellees’ Br. at 25), nearly all Contractor
Employee Appellants expressly alleged that they had been “provided no
accommodation” or were “not provided an accommodation.” See 2 ER 31–93. True,
many of them hoped that they were only “originally” refused, id., and that their
employers will reverse that decision, but Appellees’ conclusion that this means those
Appellants are not imminently threatened with loss of employment has no basis. To
date, the EOs remain in place and enforceable; that certain employers may have
paused individualized enforcement does not change the facts: Appellants have
“allege[d] constitutional violations of the First Amendment and RFRA, which
‘secures Congress’ view of the right to free exercise under the First Amendment[.]’”
U.S. Navy Seals 1-26 v. Biden, 27 F.4th 336, 347 (5th Cir. 2022) citing Tanzin v.
Tanvir, 141 S. Ct. 486, 489, 208 L. Ed. 2d 295 (2020). Accommodations have been
denied, and they remain denied. Unless Appellees withdraw the mandate or the
District Court grants relief, nothing more than employers’ non-binding decision to
suspend enforcement of the challenged EOs stands between Appellants and
termination. Appellees’ assumption otherwise is mere conjecture. Appellants
experience a daily imminent threat of termination remains, resulting in a situation
where standing cannot be nullified. Appellees assert the possibility of removal of the
potential injury at a later time, but the fact remains that the harm, threat of
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termination, is a recurring daily event for all Appellants. The current circumstances
demonstrate that Appellants experience a daily, recurring, concrete harm that
supports their standing claims.
Appellees’ reliance on Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) is
misplaced: This Court in that case held that Mr. Wolfson, a prospective candidate
for judicial office, had stated a ripe First Amendment claim where he wished to speak
in a way forbidden by his state’s judicial ethics code. This Court did not require Mr.
Wolfson to have been specifically threatened with enforcement, or even to have
broken the code yet. Wolfson, 616 F.3d at 1058 (“the Court has endorsed a ‘hold
your tongue and challenge now’ approach rather than requiring litigants to speak
first and take their chances with the consequences.”) (quoting Ariz. Right to Life
PAC v. Bayless, 320 F.3d 1002, 1006 (9th Cir.2003)). A fortiori, Appellants, who
have already refused vaccination, putting themselves in the crosshairs of disciplinary
measures under EO 14042, have stated a ripe claim.
1.
While Federal Employees are subject to the Civil Service
Reform Act, this does NOT bar these Employees from
advancing RFRA claims to protect their interests.
The Federal Employee Appellants—all 8 of them—concede that their claims
are within the scope of the CSRA. Nonetheless, 40 years of jurisprudence in this
Circuit holds that administrative exhaustion is “not an absolute bar to judicial
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consideration,” especially where “[r]esolving a claim founded solely upon a
constitutional right is singularly suited to a judicial forum and clearly inappropriate
to an administrative board.” Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)
(remanding a military discharge case that the District Court dismissed for lack of
administrative finality with the requirement that the district court “consider the
constitutional issues.”). Id. In Downen, Plaintiffs’ complaint rested “solely upon the
resolution of her constitutional claim,” and because of this basis, Plaintiff “was not
barred from District Court through her failure to exhaust administrative remedies.”
Id. Similarly, the 8 federal employees have claimed constitutional violations and
need not await a CSRA final decision in light of their allegations of constitutional
violations. And, the Contractor Employee Appellants’ claims are not governed by
the CSRA in the first place, because they are not civil servants. See 5 U.S.C. § 7511
(statute applies to certain “individual[s] in the competitive service” or the “excepted
service.”). This Court should remand to the district court for development of all
Appellants’ constitutional and RFRA claims.
B.
The Executive Orders are Not Authorized by the Procurement Act.
Appellees fail to distinguish this case from Kentucky v. Biden, 23 F.4th 585,
609–10 (6th Cir. 2022), and Georgia v. President of the United States, 46 F.4th 1283,
1296–97 (11th Cir. 2022), in which two of this Court’s sister Courts of Appeal held
that the EOs far exceed the Federal Property and Administrative Services Act of
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1949 (“Procurement Act”), 40 U.S.C. § 101 et seq. Appellees, instead insist that
both of those Courts completely misunderstood the scope of the Procurement Act.
Not so.
As the Eleventh Circuit reasoned:
what the Procurement Act is all about—creating an ‘economical
and efficient system’ for federal contracting…. is worlds away
from conferring general authority for every agency to insert a
term in every solicitation and every contract establishing health
standards for contractors’ employees…. An all-encompassing
vaccine requirement is different in nature than the sort of project-
specific restrictions contemplated by the Act. Like other enabling
legislation, this statute is not an ‘open book’ to which contracting
agencies may ‘add pages and change the plot line.’
Georgia, 46 F.4th at 1296 (quoting 40 U.S.C. § 101; and quoting West Virginia v.
EPA, ––– U.S. ––––, 142 S. Ct. 2587, 2609, 213 L.Ed.2d 896 (2022)).
The federal government is not just another contracting party, and its
mandatory contracting policies, procedures, and terms and conditions cannot be
ignored as non-regulatory. “The Department of Labor has suggested that roughly
‘one-fifth of the entire U.S. Labor Force’ is ‘employed by federal contractors.’”
Louisiana, 55 F.4th at 1028 (quoting Dep’t of Labor, History of Executive Order
11246, perma.cc/6ZXJ-WGR); see also Kentucky v. Biden, 23 F.4th 585 at 589 (6th
Cir. 2022). The very loose “nexus” standard endorsed by the D.C. Circuit, which
Appellees urge this Court to adopt, would allow a President to regulate literally any
aspect of that vast population’s practices, so long as he can gin up some attenuated,
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speculative connection to efficiency, “This is the House that Jack Built” style. See
UAW-Labor Employment & Training Corp. v. Chao, 325 F.3d 360, 366–67 (D.C.
Cir. 2003) (“The link may seem attenuated … and indeed one can with a straight
face advance an argument claiming opposite effects or no effects at all. But…under
Kahn’s lenient standards, there is enough of a nexus.”) A standard so loose is no
standard at all, merely a refusal to respect Congress’s intent.
This Sixth Circuit rightly rejected that approach earlier this month when it
“decline[d] the government’s invitation to construe § 121(a) as authorizing the
President to ignore the limits inherent in the [Procurement] Act’s operative
provisions in favor of an ‘anything-goes’ pursuit of a broad statutory purpose.”
Kentucky v. Biden, No. 21-6147, 2023 WL 164614, at *5 (6th Cir. Jan. 12, 2023)
(“Kentucky II”). The Court held that the Contractor EO impermissibly lacks a nexus
to federal contracting policy and rejected the Government’s rhetorical sleight-of-
hand of “equating contractor efficiency with the efficiency of government
contracting.” Id. at *6 (emphasis in original). The Court then concluded: “The
[Procurement] Act does not authorize the President to issue directives that simply
‘improve the efficiency of contractors and subcontractors.’” Id. at *7 (quoting 86
Fed. Reg. at 50985).
Appellees urge this Court to find, however, that the President’s plain
statement of his purpose, first and foremost, to (supposedly) advance public health,
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rather than economy and efficiency in government contracting, is irrelevant—that
no matter how clear it may be that the “nexus” is a mere pretext tacked on to justify
a totally different policy goal, this Court must uphold the President’s action. The
President, on Appellees’ theory, through the Procurement Act, was vested by
Congress with tyrannical powers over federal contractors and their employees, free
to order them to do whatever he thinks best under the guise of “federal contracting.”
As the Fifth Circuit recently held in upholding an injunction of the Contractor
EO, the “federal contractor mandate is neither a straightforward nor predictable
example of procurement regulations authorized by Congress to promote ‘economy
and efficiency.’… At issue in this case, though, is not whether the federal
government may (analogously) force its employees to get vaccinated against
COVID-19, but whether the federal government may place such a requirement in its
contracts with third parties, including the Plaintiff States. The Government has
provided no examples of such contracts in the private sector.” Louisiana v. Biden,
55 F.4th at 1033. That Court then placed its shut the Contractor EO’s coffin: “Most
significantly, unlike the non-discrimination, E-Verify, Beck rights, and sick leave
orders, which govern the conduct of employers, the vaccine mandate purports to
govern the conduct of employees — and more than their conduct, purports to govern
their individual healthcare decisions.” Id. at 1030. The Fifth Circuit nailed the coffin
shut:
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The vast scope of its mandate belies that contention. There is little
internal about a mandate which encompasses even employees whose
sole connection to a federal contract is a cubicle in the same building
as an employee working ‘in connection with’ a federal contract —
especially as the Supreme Court has called the phrase ‘in connection
with’ ‘essentially ‘indeterminat[e]’ because connections, like relations,
‘stop nowhere.’
Id. at 1033 (quoting Maracich v. Spears, 570 U.S. 48, 59, 133 S. Ct. 2191, 186 L.
Ed. 2d 275 (2013) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645, 655, 115 S. Ct. 1671, 131 L. Ed. 2d 695 (1995)
(internal quotation marks omitted)). Thus, Appellees’ (and the District Court’s)
reliance on such cases as UAW-Labor Emp’t & Training Corp. v. Chao, 325 F.3d
360, 366 (D.C. Cir. 2003), AFL-CIO v. Kahn, 618 F.2d 784, 790 (D.C. Cir. 1979)
(en banc), and American Federation of Government Employees v. Carmen, 669 F.2d
815 (D.C. Cir. 1981) is misplaced (see Appellees’ Br. at 38, 47) as those cases
involved regulation of the contractor conduct rather than contractors employee
conduct. See Louisiana v. Biden, 55 F.4th at 1030 (distinguishing Chao and Kahn).
The Procurement Act, simply put, was never intended to grant the President
despotic authority over personal health-care decisions of millions of workers simply
because their employers want a federal contract.
C.
Appellants Sufficiently Plead RFRA Claims.
Appellees do not seriously argue that the EOs at issue use the least restrictive
means, or even effectively advance public-health goals, nor can they. Appellants
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clearly pled (and can prove) otherwise. In this respect, this case is strikingly similar
to Doster, where the Sixth Circuit held that the “Air Force has failed to show that it
has a compelling interest in forcing the Plaintiffs to get vaccinated on threat of
punishment or that this action is the least restrictive means to serve such an interest.”
Doster, 54 F.4th at 421. Instead, Appellees, and the District Court, take the position
that to state a claim under RFRA, a plaintiff must “identif[y] ‘the religious activities
they were engaged in, [and] how those activities were substantially burdened by’”
government action. Appellees’ Br. at 34 (quoting 1-ER-13) (brackets added). But
Appellants (all but two) were quite clear that they each sought an exemption from
the vaccine mandate based in most instances on their sincere religious beliefs, and
that most of those exemptions were nominally granted, albeit without
accommodation, which confirms that the Appellants had established the existence
of a religious belief which would be burdened by accepting vaccination. See 2 ER
31–93. Simply put, “plaintiffs had suffered irreparable harm from being coerced
into ‘a choice between their job(s) and their jab(s),’ BST Holdings, L.L.C. v. OSHA,
17 F.4th 604, 618 (5th Cir. 2021), or ‘between their beliefs and their benefits,’
Sambrano, 19 F.4th at 841 (Ho, J., dissenting).” Sambrano v. United Airlines, Inc.,
21-11159, 2022 WL 486610, at *8 (5th Cir. Feb. 17, 2022).
What Appellees and the District Court are really asking for, is an apologia,
an explanation satisfactory and comprehensible to someone with different beliefs, as
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to the doctrinal basis for Appellants’ avoidance of vaccination. That inquiry, RFRA
does not and cannot demand. Just as the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), “does not differentiate among bona fide faiths,” Cutter v.
Wilkinson, 544 U.S. 709, 723, 125 S. Ct. 2113, 161 L.Ed.2d 1020 (2005), neither
does RFRA. RFRA provides, in sweeping language: “Government shall not
substantially burden a person’s exercise of religion even if the burden results from a
rule of general applicability, except as provided in subsection (b).” 42 U.S.C. §
2000bb-1(a). Nowhere in the statute is the Government (or this Court) given the
power to evaluate the person’s exercise. This was made clear by the Supreme Court
in Burwell v. Hobby Lobby, where the Court held that an inquiry into the “whether
the religious belief asserted in a RFRA case is reasonable” is a “question that the
federal courts have no business addressing.” Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682, 724, 134 S. Ct. 2751, 189 L.Ed.2d 675 (2014). Here, the sincerity of
Appellants’ religious beliefs preventing vaccination is implied by their allegations
that they were granted exemptions, however nominally. The District Court’s (and
Appellees’) demand that they further “identify” (i.e., explain) their religious practice
at issue defies Burwell.1
1 To be clear, an “exercise of religion” protected by RFRA may consist of inaction.
The Supreme Court has long recognized that “a State would be ‘prohibiting the
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But even if such a doctrinal primer were called for in making a RFRA claim,
the District Court further erred in not granting leave to amend to clarify the nature
of the religious practice at issue, which some Appellants would be willing to explain
further.
Appellees’ and the District Court’s haphazard approach to Appellants’ RFRA
claims may have sufficed under the rational-basis review espoused in Goldman v.
Weinberger, but it fails under RFRA. See: Goldman v. Weinberger, 475 U.S. 503,
106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986). On its rejection of Goldman under RFRA
claims, the Sixth Circuit was clear: “Although Goldman rejected Sherbert’s strict-
scrutiny test in the military context (at least for a military regulation that was
arguably neutral and generally applicable), RFRA requires the government to meet
that test for all actions that substantially burden religious exercise, including actions
by a military ‘branch.’” Doster, at 40-41. Thus, as strict scrutiny is the appropriate
inquiry, and Appellees failed to make a showing that accommodations, exempting
free exercise [of religion]’ if it sought to ban such acts or abstentions only when
they are engaged in for religious reasons, or only because of the religious belief
that they display.” Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494
U.S. 872, 877, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990) (emphasis added,
bracketed text in original, quoting U.S. Const. Amend. 1. Cl. 1).
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individuals from the Executive Orders’ requirements was the least restrictive means,
the EOs fail under RFRA.
D.
Appellees Err in Dismissing the Major Questions Doctrine.
This case addresses fundamental rights, policy, and laws that span the entire
United States, including one-fifth of the Nation’s workforce (and likely nearly 30%
of that workforce when federal employees are included). With such an expansive
reach into the workforce, the question becomes whether the challenged EOs are an
“unheralded power representing a transformative expansion of [] regulatory
authority.” West Virginia v. EPA, 142 S. Ct. 2587, 2595, 213 L.Ed.2d 896, 903
(2022). Clearly, they are. As with the EPA in West Virginia v. EPA Appellants’
launched the EOs to “adopt a regulatory program that Congress had conspicuously
declined to enact itself.” Id. Such circumstances are ripe for a major questions
doctrine analysis as the challenged EOs constitute “agencies asserting highly
consequential power beyond what Congress could reasonably be understood to have
granted.” Id., at 2609. Finally, as with the EPA in West Virginia, the EOs
“empower[] it [the government] to substantially restructure the [] []market.” Id. at
2610. Each of these characterizations squarely fit.
Appellees defend the Contractor EO as “an exercise of the federal
government’s proprietary authority, as the purchaser of services from federal
contractors, and one that applies only to those workplaces where work on federal
Case: 22-35474, 01/23/2023, ID: 12636405, DktEntry: 32, Page 20 of 26
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contracts is taking place.” Appellants’ Br., 49. Not so. Appellants have already
addressed the Procurement Act in great detail and have cited, Kentucky, II and
Louisiana, supra, and have demonstrated that the EOs reach beyond the workplace.
As the Supreme Court held: “A vaccination, after all, ‘cannot be undone at the end
of the workday.’ [] Contrary to the dissent’s contention, imposing a vaccine mandate
on 84 million Americans in response to a worldwide pandemic is simply not ‘part of
what the agency was built for.’” Nat’l Fed’n of Indep. Bus. v. DOL, OSHA, 142 S.
Ct. 661, 665, 211 L.Ed.2d 448, 454 (2022) citing In re MCP No. 165, 20 F. 4th, at
274 (Sutton, C. J., dissenting).
As the sister Court held in Louisiana v. Biden, this case is not about “whether
the federal government may (analogously) force its employees to get vaccinated
against COVID-19, but whether the federal government may place such a
requirement in its contracts with third parties.” Louisiana v. Biden, 55 F.4th 1017
(5th Cir. 2022). As with the Fifth Circuit, this Court should reject that notion without
question. The Fifth Circuit’s rejection is clear: “[t]he Government has provided no
examples of such contracts in the private sector.” Id. The Court then concluded that
the Contractor EO “purports to govern [] individual healthcare decisions,” rather
than employee conduct, and if the Court were to allow such a mandated to remain
it’s decision would effectively “ratify an ‘enormous and transformative expansion
in’ the President’s power under the Procurement Act.” Id. see also: Kentucky v.
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Biden, II, 23 F.4th 585, 607 (6th Cir. 2022) (“the Property Act
unambiguously excludes the
purported
power…the
government
has
propounded no relevant history showing that it has ever wielded the Property Act to
mandate ‘vaccination and medical examinations’ or to ‘control [] the spread of
disease.”). Because the EOs reach far beyond the workplace and because they
represent such a departure from Congress’s intent under the Procurement Act, the
EOs are an “enormous and transformative expansion” in that granted power, and
such transformation squarely falls within the major questions analysis.
The major question inquiry and conclusion is succinctly stated in Georgia v.
Biden, which held that the Court’s central inquiry question is: “whether Congress
delegated the power to require widespread vaccination through the Procurement
Act.” To that question, the answer is: “[a]ll signs suggest that Congress has retained
this power rather than passing it on.” Georgia v. President of the United States, 46
F.4th 1283, 1301 (11th Cir. 2022). This Court should view the question of whether
President Biden exceeded his Procurement Act authority in adopting and
implementing the EOs as a major questions that fits within this court’s purview.
Upon taking up such question, the Court should conclude, as its sister courts have,
that the President has exceeded that authority.
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III.
CONCLUSION
For the reasons set forth above and in Appellants’ opening brief in this Court,
this court should reverse the District Court’s dismissal of Appellants’ claims and
remand for further proceedings and trial.
DATED this 23rd day of January 2023.
ARNOLD & JACOBOWITZ PLLC
/s/ Nathan J. Arnold
Nathan J. Arnold, WSBA No. 45356
2701 First Ave., Ste. 200
Seattle, WA 98121
(206) 799-4221
Nathan@CAJLawyers.com
SILENT MAJORITY FOUNDATION
/s/ Simon P. Serrano
Simon Peter Serrano, WSBA No. 54769
Silent Majority Foundation
5238 Outlet Dr
Pasco, WA 99301
(530)906-9666
pete@silentmajorityfoundation.org
Counsel for Appellants
Case: 22-35474, 01/23/2023, ID: 12636405, DktEntry: 32, Page 23 of 26
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that:
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 4,327 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has
been prepared in a proportionately spaced typeface using Microsoft Word Times
New Roman 14-point font.
DATED this 23rd day of January 2023.
ARNOLD & JACOBOWITZ PLLC
/s/ Nathan J. Arnold
Nathan J. Arnold, WSBA No. 45356
2701 First Ave., Ste. 200
Seattle, WA 98121
(206) 799-4221
Nathan@CAJLawyers.com
SILENT MAJORITY FOUNDATION
/s/ Simon P. Serrano
Simon Peter Serrano, WSBA No. 54769
Silent Majority Foundation
Case: 22-35474, 01/23/2023, ID: 12636405, DktEntry: 32, Page 24 of 26
21
5238 Outlet Dr
Pasco, WA 99301
(530)906-9666
pete@silentmajorityfoundation.org
Counsel for Appellants
Case: 22-35474, 01/23/2023, ID: 12636405, DktEntry: 32, Page 25 of 26
22
CERTIFICATE OF SERVICE
I hereby certify that on January 23, 2023, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
DATED this 23rd day of January, 2023.
/s/ Madeline Johnson
Madeline Johnson, Paralegal
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