Motion To Dismiss: ARDAMICA, et al., v. BRIAN VANCE as Manager of the
Summary
The Federal Defendants' Motion to Dismiss, filed January 18, 2022 as ECF No. 59 in Ardamica, et al. v. Brian Vance, et al., No. 4:21-CV-05148-TOR, in the U.S. District Court for the Eastern District of Washington. Defendants Joseph R. Biden and Brian Vance, through the United States Attorney's office, move under Fed. R. Civ. P. 12(b)(1) and (6) to dismiss claims by 292 plaintiffs employed at the DOE Hanford Site challenging the vaccination requirements of Exec. Order No. 14043 and Exec. Order No. 14,042. The motion argues that the complaint states no claim against Brian Vance and that plaintiffs lack standing because some have not applied for an exception, are already vaccinated or accommodated, or have unripe requests. It also addresses the ADA, wrongful termination, Procurement Act, APA, equal protection, due process and free exercise counts.
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Case 4:21-cv-05148-TOR ECF No. 59 filed 01/18/22 PageID.911 Page 1 of 26
1 Vanessa R. Waldref
2 United States Attorney
Eastern District of Washington
3 John T. Drake
4 Molly M.S. Smith
Assistant United States Attorneys
5 Post Office Box 1494
6 Spokane, WA 99210-1494
Telephone: (509) 353-2767
7
8
UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF WASHINGTON
10
11 Hanford Security Police Officers D
DAVID G. DONOVAN and No. 4:21-CV-05148-TOR
12 CHRISTOPHER J. HALL, United
States Department of Energy employee
13 STEPHEN C. PERSONS, Safety Bases FEDERAL DEFENDANTS’
Compliance Officer THOMAS R. MOTION TO DISMISS
14
ARDAMICA, et al.,
15 03/11/2022
Plaintiff, Without Oral Argument
16 v.
17
BRIAN VANCE as Manager of the
18 UNITED STATES DEPARTMENT
OF ENERGY Hanford Site, VALERIE
19 MCCAIN, as Vit Plant Project
Director, BECHTEL, SCOTT SAX as
20 President and Project Manager of
21 CENTRAL PLATEAU CLEANUP
COMPANY, ROBERT WILKINSON
22 as President and Program Manager of
HANFORD MISSION INTEGRATED
23 SOLUTIONS, LLC., DON HARDY as
24 Manager of HANFORD
LABORATORIES MANAGEMENT
25 AND INTEGRATION 222-S
LABORATORY MANAGER, HIRAM
26 SETH WHITMER as President and
Program Manager, HPM
27 CORPORATION, STEVEN ASHBY
28 as Laboratory Director, PACIFIC
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - i
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Case 4:21-cv-05148-TOR ECF No. 59 filed 01/18/22 PageID.912 Page 2 of 26
NORTHWEST NATIONAL
1 LABORATORY, JOHN
2 ESCHENBERG as President and Chief
Executive Officer of WASHINGTON
3 RIVER PROTECTION SOLUTIONS,
JOSEPH R. BIDEN, President of the
4 United States of America,
5 Defendants.
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TABLE OF CONTENTS
1
2
I. Introduction..................................................................................................... 1
3
II. Motion to Dismiss Standard .......................................................................... 2
4
5 III. Argument ......................................................................................................... 3
6 A. Brian Vance should be dismissed as a defendant because Plaintiffs fail to
state any claim against him. .............................................................................. 3
7
8 B. The Court lacks jurisdiction over Plaintiffs’ claims because Plaintiffs do not
have standing. ................................................................................................... 4
9
i. Plaintiffs who have not applied for any exception face self-inflicted injuries
10 that cannot support standing. .......................................................................... 5
11
ii. Plaintiffs who have already been vaccinated or who have been provided
12 accommodations do not face an injury that gives them standing. .................. 6
13
iii. Plaintiffs who have not alleged their exception status have not met their
14 burden of establishing jurisdiction. ................................................................. 7
15 iv. Plaintiffs who have not yet had their accommodation requests determined
16 raise unripe claims. ......................................................................................... 9
17 C. Federal Defendants are not subject to ADA employment discrimination
liability (Count 3) as a matter of law. ............................................................. 11
18
19 D. Plaintiffs’ wrongful termination claim (Count 4) is premature, improperly
pled, and barred by sovereign immunity. ....................................................... 12
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21 E. Plaintiffs’ state law claims (Counts 5 and 6) are insufficiently pled and barred
by sovereign immunity. .................................................................................. 13
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F. The President has not violated the Procurement Act (Count 8) and is
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statutorily not subject to the Office of Federal Procurement Policy Act
24 (Count 9). ........................................................................................................ 15
25 G. Plaintiffs’ constitutional structural claims (Counts 10–13, 17) are
26 insufficiently pled. .......................................................................................... 16
27 H. Plaintiffs’ APA claims (Counts 14–16) fail for lack of a proper defendant. . 17
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - iii
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I. Plaintiffs fail to adequately plead their equal protection challenge (Count 2). ..
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J. The vaccination mandates do not violate Plaintiffs’ substantive due process
3 rights (Count 7). .............................................................................................. 18
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K. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1). ... 19
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IV. Conclusion ..................................................................................................... 20
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Defendants Joseph R. Biden and Brian Vance, through counsel, respectfully
1
2 move to dismiss Plaintiffs’ Complaint (ECF No. 1) pursuant to Fed. R. Civ. P.
3
12(b)(1) and (6) and to dismiss Federal Defendants as parties to this suit.
4
5 I. Introduction
6
The ongoing COVID-19 pandemic poses a serious threat to public health and
7
8 the economy. The illness and mortality caused by COVID-19 have led to serious
9
disruptions for organizations, employees, and contractors across the United States, and
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11 the federal government is no exception. Accordingly, on September 9, 2021, the
12 President issued two Executive Orders aimed at preventing disruptions in the
13
provision of government services by federal employees and contractors by combatting
14
15 the spread of COVID-19. See Requiring Coronavirus Disease 2019 Vaccination for
16 Federal Employees, Exec. Order No. 14043, 86 Fed. Reg. 50,989, (Sept. 9, 2021)
17
(“Employee Order”); Ensuring Adequate COVID Safety Protocols for Federal
18
19 Contractors, Exec. Order No. 14,042, 86 Fed. Reg. 50,985 (Sept. 9, 2021)
20 (“Contractor Order”).
21
Plaintiffs are a group of nearly 300 individual employees who are allegedly
22
23 subject to the Executive Orders’ vaccination requirements due to their employment
24 with the Department of Energy (“DOE”) or a covered contractor at the DOE Hanford
25
Site in Richland, Washington. Plaintiffs oppose COVID-19 vaccination for a variety
26
27 of personal, medical, and religious reasons. Plaintiffs seek to enjoin enforcement of
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 1
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the Executive Orders and money damages in the event they face adverse employment
1
2 actions. Even accepting Plaintiffs’ factual allegations as true at this stage in the
3
proceedings, Plaintiffs’ claims against Federal Defendants should be dismissed, as all
4
causes of action asserted against Federal Defendants are either nonjusticiable or fail to
5
6 state a claim.
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8 II. Motion to Dismiss Standard
9 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is
10
addressed to the court’s subject matter jurisdiction. Questions of justiciability are
11
12 “inherently jurisdictional.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir.
13 2007). A court may not hear claims over which it lacks subject-matter jurisdiction.
14
Fed. R. Civ. P. 12(h)(3). A Rule 12(b)(1) motion may be classified as either facial, in
15
16 which case the court’s inquiry is limited to the allegations in the complaint, or factual,
17 in which case the court may consider extrinsic evidence. Safe Air for Everyone v.
18
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In resolving a factual attack on
19
20 jurisdiction, the district court may review evidence beyond the complaint without
21 converting the motion to dismiss into a motion for summary judgment.” Id. The
22
party asserting jurisdiction bears the burden of proof on the issue. See Lujan v. Defs.
23
24 of Wildlife, 504 U.S. 555, 561 (1992).
25 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
26
addressed to the sufficiency of the pleading of claims in the complaint. Federal Rule
27
28 of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 2
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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To proceed past the
1
2 pleading stage, the plaintiff’s factual allegations, accepted as true, must state a claim
3
that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
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A claim is plausible when the plaintiff pleads facts that allow the court to “draw the
5
6 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
7
v. Iqbal, 556 U.S. 662, 678 (2009). While detailed factual recitations are not required,
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9 the plaintiff must come forward with more than “unadorned, the-defendant-
10 unlawfully-harmed-me” allegations. Id. Formulaic recitations of the elements of a
11
claim, supported by mere labels and conclusions, are not sufficient. Twombly, 550
12
13 U.S. at 555.
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III. Argument
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16 A. Brian Vance should be dismissed as a defendant because Plaintiffs fail to
17 state any claim against him.
18 As the Court previously recognized, Plaintiffs fail to state any claim against
19 Defendant Brian Vance. ECF No. 58 at 4. Plaintiffs’ Complaint makes no allegation
20
against Defendant Vance other than to identify him as the Manager of the United
21
22 States DOE Hanford Site. ECF No. 1 at ¶ 7. In failing to make any other factual
23 allegation regarding Defendant Vance, Plaintiffs fail to offer more than insufficient
24
“unadorned, the-defendant-unlawfully-harmed-me” allegations. Iqbal, 556 U.S. at
25
26 678. The Court should dismiss all claims asserted against Defendant Vance.
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B. The Court lacks jurisdiction over Plaintiffs’ claims because Plaintiffs do
1
not have standing.
2
Although this case involves challenges being raised by 292 individuals,
3
Plaintiffs are generally divisible into two categories: federal government employees,
4
5 and employees of federal contractors and subcontractors. The types of claims they
6
assert are also generally divisible into two categories: facial challenges to the legality
7
8 of the two Executive Orders themselves, and as-applied challenges to the manner in
9 which Plaintiffs’ employers have implemented the relevant vaccination mandates.
10
While Federal Defendants are the subject of the as-applied challenges asserted only by
11
12 the seven Federal Employee Plaintiffs, Federal Defendants are the subject of the facial
13 challenges raised by all Plaintiffs. Accordingly, Federal Defendants have an interest
14
in challenging the standing of all Plaintiffs.
15
16 Article III courts are courts of limited jurisdiction, and questions of
17 justiciability are “inherently jurisdictional.” See Corrie, 503 F.3d at 981. Challenges
18
to standing are properly asserted in a Rule 12(b)(1) motion. Chandler v. State Farm
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20 Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). The “irreducible
21 constitutional minimum of standing” requires that the Plaintiff suffer an “injury in
22
fact” that is “concrete and particularized” and “actual or imminent,” that there is a
23
24 “causal connection between the injury and the conduct complained of,” and that it is
25 “likely” that the injury is redressable by a favorable decision. Lujan, 504 U.S. at 560–
26
61 (citations omitted).
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Plaintiffs’ alleged injuries in this case are based on their supposed forced choice
1
2 between receiving an unwanted vaccine or risking their continued employment. They
3
explicitly identify their “imminent and wrongful termination” as the harm they face.
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ECF No. 1 at ¶ 1. But accepting as true at this stage of the proceedings that Plaintiffs
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6 have good-faith medical or religious objections to vaccination, Plaintiffs are able to
7
pursue an exception and accommodations from the vaccine mandates. Based on the
8
9 allegations raised in the Complaint, Plaintiffs have generally pursued that option as
10 follows: (1) some have not applied for an exception to the vaccination requirement;
11
(2) some are already vaccinated or have been granted an accommodation; (3) some
12
13 have not alleged the status of any request for an exception; and (4) some have sought
14 an exception but have not yet had accommodations determined. For slightly different
15
reasons, each of these plaintiff categories lack standing to pursue their claims.
16
17 i. Plaintiffs who have not applied for any exception face self-inflicted
18 injuries that cannot support standing.
19 Three Plaintiffs in this case affirmatively pled that they have not applied for an
20 exception to their employers’ implementation of the vaccine mandates. ECF No. 1 at
21
¶¶ 39, 158, 208. These Plaintiffs lack standing because their injuries are self-imposed.
22
23 In order to meet the causation requirement of the standing test, a plaintiff’s
24 injury must be “fairly traceable to the challenged action.” Monsanto Co. v. Geertson
25
Seed Farms, 561 U.S. 139, 149 (2010). Plaintiffs “cannot manufacture standing
26
27 merely by inflicting harm on themselves,” as such harms are not fairly traceable to the
28
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defendant’s conduct. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013). The
1
2 Executive Orders challenged here implement vaccination requirements, but they allow
3
for exceptions as required by law. Plaintiffs have the ability to seek exceptions from
4
the requirement by seeking accommodations from their employers. But the three
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6 Plaintiffs who have declined to pursue exceptions are not facing potential termination
7
because the vaccine mandates unduly burden their legal rights; rather, they are facing
8
9 potential termination because they have declined to pursue the exception and
10 accommodation process available to them. That injury is not traceable to Federal
11
Defendants. Because these three Plaintiffs’ claimed injuries are self-inflicted, they are
12
13 insufficient to support standing to sue Federal Defendants, and these Plaintiffs should
14 be dismissed from this case.
15
16 ii. Plaintiffs who have already been vaccinated or who have been
provided accommodations do not face an injury that gives them
17 standing.
18 The Plaintiffs in this case who are already vaccinated, and those who have
19
received accommodations from their employers, do not have standing in this case
20
21 because they are fully compliant with the vaccination mandates and do not face the
22 injuries alleged in the complaint.
23
The “injury in fact” component of standing “requires that the party seeking
24
25 review be himself among the injured.” Lujan, 504 U.S. at 563 (citation omitted). Of
26 the 292 Plaintiffs in this case, 25 have alleged either that they are already fully
27
vaccinated or that they have been granted some form of accommodation by their
28
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employer. ECF No. 1 at ¶¶ 19, 27, 36, 45, 60, 88, 110, 119, 129, 147, 157, 161, 169,
1
2 189, 204, 207, 212, 247, 251, 252, 255, 271, 282, 292, 294. Additionally, two HMIS
3
employees alleged that their requested accommodations were either rescinded or
4
denied. ECF No. 1 at ¶¶ 65, 128. However, according to the Declaration of Holly
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6 Johnson submitted in support of the Contractor Defendants’ opposition to Plaintiffs’
7
TRO motion, all HMIS employees who requested an exception have since been
8
9 offered an accommodation of masking and regular COVID-19 testing as an alternative
10 to vaccination.1 ECF No. 49 at 6, ¶ 18. Together, these 27 Plaintiffs are compliant
11
with the vaccination mandates, either by becoming fully vaccinated or by obtaining a
12
13 legal exception from the policy. They therefore do not face termination from their
14 employment based on the challenged vaccination mandates. Thus, these Plaintiffs do
15
not face the injury they allege to support their standing to sue in this case, and their
16
17 claims should be dismissed.
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iii. Plaintiffs who have not alleged their exception status have not met
19 their burden of establishing jurisdiction.
20 Some Plaintiffs have not alleged any information about whether they have
21
sought exception requests, and therefore have not sufficiently pled information to
22
23 establish that they have standing to sue. “The party invoking federal jurisdiction bears
24 the burden of establishing standing.” Clapper, 568 U.S. at 411–12 (citation and
25
26 1
The Court may consider this declaration without converting the present motion into a
27
summary judgment motion. Safe Air, 373 F.3d at 1039.
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quotation marks omitted). Since standing is “an indispensable part of the plaintiff’s
1
2 case, each element must be supported in the same way as any other matter on which
3
the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
4
required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
5
6 Seventeen Plaintiffs here have alleged their job titles, but have alleged no
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information about their vaccination status, the nature of their objection, or whether
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9 they have pursued an exception from the vaccination requirement. ECF No. 1 at
10 ¶¶ 28, 30, 83–85, 93, 104, 121, 135, 168, 176, 194, 198, 211, 234, 258, 261. Three
11
Plaintiffs have alleged that they received their first vaccine dose and do not wish to
12
13 receive further doses, but they do not allege whether they have pursued an exception
14 from the full vaccination requirement. Id. at ¶¶ 98, 115, 237. Two other Plaintiffs are
15
employed by a sub-contractor of several of the contractor employers involved in this
16
17 case, but they similarly do not indicate whether they have pursued individual
18 exceptions from the vaccination requirement. Id. at ¶¶ 205, 206.
19
These allegations are insufficient to meet Plaintiffs’ burden of establishing they
20
21 have standing. If any of these Plaintiffs did not apply for an exception from the
22 vaccination requirement, they fall into the first category of plaintiffs whose injuries
23
are self-inflicted and not traceable to the challenged Executive Orders. If any of these
24
25 Plaintiffs are granted accommodations, they will be compliant with the vaccination
26 requirement and will fall into the second category of plaintiffs who do not face any
27
imminent injury in fact. Without alleging more information, it is impossible to tell
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whether these Plaintiffs have standing. They therefore fail to meet their burden of
1
2 establishing standing at this stage in the proceedings, and their claims should be
3
dismissed.2
4
5 iv. Plaintiffs who have not yet had their accommodation requests
determined raise unripe claims.
6
The remainder of the individually named Plaintiffs allege that they have not yet
7
8 been granted accommodations, generally following the pattern pleading that the
9
Plaintiff has “submitted a religious and/or medical exemption, “accepted by” the
10
11 employer, “but has been provided no accommodation.” The Court should dismiss
12 these claims as unripe.
13
The ripeness doctrine guards against “premature adjudication” of abstract
14
15 disagreements and theoretical harms. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538
16 U.S. 803, 807–08 (2003) (citation omitted). Ripeness contains both a constitutional
17
and a prudential component. Coons v. Lew, 762 F.3d 891, 897 (9th Cir. 2014). The
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19 constitutional component derives from Article III, which limits the jurisdiction of
20 federal courts to deciding actual cases or controversies. Id. A case is not
21
22 2
Additionally, one Plaintiff fails to allege either his identity or his employer, so it is
23
impossible to determine from the pleadings whether this Plaintiff is even subject to
24
25 either Executive Order, much less whether he has pursued or been granted an
26 accommodation. ECF No. 1 at ¶ 132. This Plaintiff’s claims should also be
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dismissed.
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“constitutionally” ripe when the plaintiff’s entitlement to relief depends on
1
2 “contingent future events that may not occur as anticipated, or indeed may not occur
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at all.” Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam) (citation
4
omitted). The prudential component of the ripeness inquiry focuses on whether the
5
6 issues in the case are “fit for review” on the record presented. Nat’l Park Hosp. Ass’n,
7
538 U.S. at 812. The key consideration is whether “further factual development
8
9 would significantly advance [the Court’s] ability to deal with the legal issues
10 presented.” Id. (quotation and citation omitted); see also In re Coleman, 560 F.3d
11
1000, 1009 (9th Cir. 2009) (prudential considerations allow courts to “delay
12
13 consideration of the issue until the pertinent facts have been well-developed in cases
14 where further factual development would aid the court’s consideration”).
15
As the Court previously recognized at the TRO stage, Plaintiffs’ misleading
16
17 pleading language reveals that their claims are unripe. ECF No. 58 at 12–14.
18 Plaintiffs do not allege that their requested accommodations have been denied, and
19
therefore they do not face their alleged “imminent and wrongful termination” from
20
21 employment with DOE or a Hanford contractor. ECF No. 1 at ¶ 1. As the
22 declarations submitted in opposition to Plaintiffs’ TRO motion establish, many
23
Plaintiffs’ accommodations requests are still pending review, including all of the
24
25 requests submitted by the Federal Employee Plaintiffs. ECF No. 58 at 12–13; see,
26 e.g., ECF No. 42 at ¶ 11. These Plaintiffs do not face termination while their requests
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are pending, and their requested accommodations may eventually be granted.3 As
1
2 both a constitutional and prudential matter, Plaintiffs have failed to allege claims that
3
are ripe for review. The Court should dismiss these claims for lack of standing.
4
5 C. Federal Defendants are not subject to ADA employment discrimination
liability (Count 3) as a matter of law.
6
Plaintiffs’ third cause of action asserts a claim for failure to provide reasonable
7
8 accommodations as required by the ADA. ECF No. 1 at ¶¶ 337–45. Although this
9
case involves 292 individual Plaintiffs asserting 17 causes of action against eight
10
11 different employers and the President of the United States, the Complaint does not
12 bother to delineate which Plaintiffs assert which claims against which Defendants.
13
Federal Defendants are left to assume that all claims are being asserted against them in
14
15 some capacity.
16 To the extent Plaintiffs have alleged their ADA claim against Federal
17
Defendants, Plaintiffs fail to state a claim. If Plaintiffs’ claim is construed as a facial
18
19 challenge to the two Executive Orders, this claim fails because both Executive Orders
20 provide for vaccination exceptions as required by law. 86 Fed. Reg. 50,989; 86 Fed.
21
Reg. 50,985. And if Plaintiffs’ claim is construed as an as-applied challenge brought
22
23 against Federal Defendants by the Federal Employee Plaintiffs, they still fail to state a
24
25
3
Indeed, the declarations submitted in support of the Contractor Defendants’ TRO
26 response indicate that this is now the case for many Plaintiffs. See ECF No. 44 at 11–
27
19.
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claim. The ADA does not apply to the federal government as an employer.
1
2 Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). Moreover,
3
the Federal Employee Plaintiffs do not allege that they have a disability or medical
4
condition that prevents them from becoming vaccinated. ECF No. 1 at ¶¶ 18, 57, 67,
5
6 87, 111, 166, 288. Plaintiffs have therefore failed to allege that the Federal Employee
7
Plaintiffs are among the “[s]ome Plaintiffs [who] have medical conditions that
8
9 prohibit them from receiving the COVID-19 vaccine.” ECF No. 1 at ¶ 338. The
10 Court should dismiss this claim against Federal Defendants.
11
12 D. Plaintiffs’ wrongful termination claim (Count 4) is premature, improperly
pled, and barred by sovereign immunity.
13
Count 4 of the Complaint asserts a claim for wrongful termination in violation
14
15 of Title VII of the Civil Rights Act and the Washington Law Against Discrimination
16 (“WLAD”). ECF No. 1 at ¶ 347. Because Plaintiffs fail to articulate which Plaintiffs
17
assert this claim against which Defendants, Federal Defendants are left to assume this
18
19 count is asserted against them by the seven Federal Employee Plaintiffs. The Court
20 should dismiss this claim for several reasons.
21
First, and fatally, the Complaint does not allege that any of the Federal
22
23 Employee Plaintiffs have been terminated. Plaintiffs cannot state a facially plausible
24 claim for wrongful termination of any kind if they have not yet been terminated. See
25
Twombly, 550 U.S. at 570.
26
27
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Second, to the extent Federal Employee Plaintiffs assert a Title VII claim, the
1
2 Court lacks jurisdiction over this claim because Plaintiffs have failed to name a
3
federal department head as a proper defendant or exhaust their administrative
4
remedies prior to bringing a Title VII claim against the federal government. See
5
6 Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1196 (9th Cir. 1989) (failure to file Title
7
VII suit against proper defendant within the 30-day time limit from receipt of notice of
8
9 final EEOC action is a jurisdictional defect).
10 Finally, to the extent Federal Employee Plaintiffs assert a claim for violation of
11
WLAD against Federal Defendants, that claim is barred by sovereign immunity.
12
13 Federal Defendants are sued here in their official capacities, and therefore cannot be
14 liable under state law unless Congress has waived the United States’ sovereign
15
immunity. See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1258 (9th Cir.
16
17 2008). Congress has not waived the United States’ sovereign immunity for WLAD
18 claims, so Plaintiffs’ WLAD claim against Federal Defendants is barred. The Court
19
should dismiss this claim against Federal Defendants.
20
21 E. Plaintiffs’ state law claims (Counts 5 and 6) are insufficiently pled and
22 barred by sovereign immunity.
23 Plaintiffs assert state law claims for breach of contract and intentional or
24 negligent infliction of emotional distress. ECF No. 1 at ¶¶ 346–53. Plaintiffs’
25
conclusory assertions in support of these claims fail to meet Rule 12’s plausible
26
27 pleading standard. Twombly, 550 U.S. at 570.
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 13
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On their breach of contract claim, Plaintiffs allege “[t]here exists a binding
1
2 contract relationship between each Plaintiff and his or her employer” and “Defendants
3
have made it clear they intend to breach each Plaintiffs’ contract with the respective
4
Defendant.” ECF No. 1 at ¶¶ 349, 351. As this claim relates to Federal Defendants,
5
6 Federal Employee Plaintiffs do not identify any specifics about what “binding contract
7
relationship” exists between them and Federal Defendants, nor do they identify what
8
9 contract term is about to be breached. Moreover, Plaintiffs’ language here exposes
4
10 the ripeness issue that permeates this case—an allegation that Defendants supposedly
11
“intend to breach” a contract is not an allegation that Defendants have breached a
12
13 contract. Plaintiffs fail to sufficiently allege a breach of contract claim.
14 Likewise, Plaintiffs’ claim for intentional or negligent infliction of emotional
15
distress asserts only that “Defendants engaged in extreme and outrageous conduct
16
17 toward Plaintiffs” and that Plaintiffs have been injured. ECF No. 1 at ¶¶ 354–58. In a
18 67-page Complaint by 292 Plaintiffs against multiple defendants, Plaintiffs have
19
pleaded no specific factual allegations in support of this claim. Plaintiffs’ conclusory
20
21 recitation of the elements of an IIED/NIED claim amount to nothing more than
22
23
24
25
4
Similarly, Plaintiffs’ vague pleading prevents Federal Defendants from
26 understanding how they might plausibly be liable for violating the Contracts Clause of
27
the Constitution, as alleged at ECF No. 1 at ¶ 352.
28
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“unadorned, the-defendant-unlawfully-harmed-me” allegations that fail to state a
1
2 claim. Iqbal, 556 U.S. at 678.
3
And again, as to both Counts 5 and 6, Plaintiffs’ state law claims against
4
Federal Defendants are barred by sovereign immunity. Ibrahim, 538 F.3d at 1258.
5
6 To the extent that Plaintiffs wish to assert a tort claim for money damages against the
7
United States, they must name a proper defendant and first exhaust administrative
8
9 remedies pursuant to the Federal Tort Claims Act. McNeil v. United States, 508 U.S.
10 106, 112 (1993) (“Congress intended to require complete exhaustion of Executive
11
remedies before invocation of the judicial process.”). The Court should dismiss
12
13 Counts 5 and 6 of the Complaint against Federal Defendants.
14
F. The President has not violated the Procurement Act (Count 8) and is
15 statutorily not subject to the Office of Federal Procurement Policy Act
16 (Count 9).
17 The Contractor Order is a valid exercise of the President’s authority to direct
18
federal contracting. Federal Defendants reincorporate their arguments about the
19
20 Procurement Act from their TRO opposition brief. ECF No. 41 at 20–24. And as this
21 Court has already recognized, the Contractor Order “easily satisfies the nexus
22
requirement” of the Procurement Act. ECF No. 58 at 16. The Contractor Order is
23
24 concerned with protecting the federal government’s financial and operational interests
25 as a contracting party. Ensuring that its contractors do not suffer major disruptions
26
from COVID-19 accomplishes just that. Plaintiffs’ claims to the contrary should be
27
28 dismissed.
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Plaintiffs’ claims for violation of federal procurement policy also fail. Plaintiffs
1
2 seek to hold the President liable for failing to comply with the notice and comment
3
provisions of the Office of Federal Procurement Policy (“OFPP”) Act. ECF No. 1 at
4
¶¶ 381–84 (citing 41 U.S.C. § 1707(a)(1)). But this provision only applies to
5
6 “executive agencies,” which does not include the President or the White House in its
7
statutory definition. 41 U.S.C. § 133. Because the President is not bound by the
8
9 OFPP Act’s notice and comment procedures, this claim should be dismissed.
10
G. Plaintiffs’ constitutional structural claims (Counts 10–13, 17) are
11 insufficiently pled.
12 Plaintiffs raise a series of constitutional structural arguments seeking to
13
invalidate the Executive Orders as generally violating principles of federalism and
14
15 separation of powers. Plaintiffs’ pleading of these claims is difficult to discern at best.
16 While Plaintiffs have recited a series of constitutional terms of art, their pleadings
17
jumble multiple distinct constitutional principles in such an incomprehensible way
18
19 that none of their claims are plausible on their face. Twombly, 550 U.S. at 570.
20 As an example, Count 17 of the Complaint purports to raise a Commerce
21
Clause challenge to the Executive Orders. But the substance of Count 17 is devoted to
22
23 arguments about federalism and the anticommandeering principle. ECF No. 1 at
24 ¶¶ 446–48. Count 11 of the Complaint purports to claim that the Executive Orders
25
violate separation of powers and federalism principles, but the substance of Count 11
26
27 is devoted to arguing that the Procurement Act is an ultra vires exercise of Congress’
28
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enumerated powers under Article I, Section 8 of the Constitution. ECF No. 1 at
1
2 ¶¶ 399–407. Count 12 of the Complaint purports to assert that the Executive Orders
3
violate federalism principles by intruding on states’ police powers, but it is unclear
4
how this cause of action is different from the federalism claims that are also asserted
5
6 in Count 11 and argued in support of Count 17. Compare ECF No. 1 at ¶¶ 410–12
7
with ¶ 448. While Plaintiffs have recited constitutional law buzzwords, their
8
5
9 pleadings are incomprehensible. The Court should dismiss these constitutional
10 claims for failure to state a claim.
11
12 H. Plaintiffs’ APA claims (Counts 14–16) fail for lack of a proper
defendant.
13
Plaintiffs raise three claims that the Federal Acquisition Regulatory Council’s
14
15 class deviation, the OMB Determination, and the Executive Orders themselves all
16 violate the APA. ECF No. 1 at ¶¶ 418–45. The only federal defendant relevant to an
17
APA claim here is President Biden. But the President cannot be sued under the APA.
18
19
20
5
21 To be sure, the Supreme Court recently considered two separate consolidated cases
22 that raised constitutional and statutory challenges to two different federal COVID-19
23
vaccination policies. Nat’l Fed’n of Ind. Bus. v. Dept. of Lab., 595 U.S. ___ (2022);
24
25 Biden v. Missouri, 595 U.S. ___ (2022). But Federal Defendants are unable to discern
26 their applicability to this case based on the current muddled state of Plaintiffs’
27
pleadings.
28
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Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Because Plaintiffs’ APA claims
1
2 fail to name a proper defendant, they should be dismissed for failure to state a claim.
3
I. Plaintiffs fail to adequately plead their equal protection challenge (Count
4
2).
5
Plaintiffs apparently assert that their equal protection rights are being violated
6
on the basis of their status as having “natural immunity” against COVID-19. ECF No.
7
8 1 at ¶ 335. Aside from the basic problem that only a handful of Plaintiffs have alleged
9
their “natural immunity” status, Plaintiffs fail to articulate an equal protection claim.
10
11 “Natural immunity” is not a suspect class, so Plaintiffs’ equal protection claim is
12 subject to rational basis review. See Tandon v. Newsom, 992 F.3d 916, 930 (9th Cir.
13
2021). And Plaintiffs wholly fail to plead what about the vaccination mandates fails
14
15 rational basis review by not being “rationally related to a legitimate goal.” Sylvia
16 Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1193 (9th Cir. 2013). Plaintiffs’
17
equal protection claim should be dismissed for failure to state a claim.
18
19 J. The vaccination mandates do not violate Plaintiffs’ substantive due
20 process rights (Count 7).
21 Plaintiffs’ substantive due process claim is foreclosed by clearly established
22 law. As the Supreme Court explained in addressing another vaccine mandate over
23
115 years ago, “the liberty secured by the Constitution of the United States to every
24
25 person within its jurisdiction does not import an absolute right in each person to be, at
26 all times and in all circumstances, wholly freed from restraint.” Jacobson v.
27
Massachusetts, 197 U.S. 11, 26 (1905). The Court continued, “[r]eal liberty for all
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 18
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Case 4:21-cv-05148-TOR ECF No. 59 filed 01/18/22 PageID.933 Page 23 of 26
could not exist under the operation of a principle which recognizes the right of each
1
2 individual person to use his own, whether in respect of his person or his property,
3
regardless of the injury that may be done to others.” Id.
4
Courts today continue to rely on Jacobson to find that vaccination requirements
5
6 such as those at issue here do not burden any “fundamental right ingrained in the
7
American legal tradition.” Klaassen v. Tr. of Ind. Univ., 7 F.4th 592, 593 (7th Cir.
8
9 2021). As the cases cited in Federal Defendants’ TRO opposition brief demonstrate,
10 Plaintiffs do not have a fundamental liberty interest in avoiding vaccination, their
11
claims should be evaluated under rational basis review, and numerous courts,
12
13 including this Court, have recognized that stemming the spread of COVID-19 is a
14 legitimate state interest. See ECF No. 41 at 28–30.
15
Plaintiffs’ Complaint does not discuss any of this relevant legal framework.
16
17 Instead, Plaintiffs appeal broadly to their interests in privacy and bodily autonomy,
18 without citation to law. ECF No. 1 at ¶¶ 359–62. These “unadorned, the-defendant-
19
unlawfully-harmed-me” allegations are insufficient to meet Plaintiffs’ pleading
20
21 burden. Iqbal, 556 U.S. at 678. The Court should dismiss Plaintiffs’ substantive due
22 process claims for failure to state a claim.
23
24 K. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1).
25 The Executive Orders do not violate Plaintiffs’ free exercise rights. To the
26 extent Plaintiffs intended to assert a facial First Amendment challenge to the
27
Executive Orders, such claim would fail on its face because the vaccination mandates
28
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each provide for exceptions “as required by law.” 86 Fed. Reg. at 50,990; 86 Fed.
1
2 Reg. at 50,985. And to the extent the Federal Employee Plaintiffs assert an as-applied
3
challenge to the vaccination mandate against Federal Defendants, their claims are
4
unripe and insufficiently pled. First, as discussed supra, no Federal Employee
5
6 Plaintiff has alleged that their request for religious accommodations has been denied.
7
The Federal Employee Plaintiffs’ claims are speculative at this point and are therefore
8
9 unripe for review. Second, even if the Federal Employee Plaintiffs had ripe claims,
10 those Plaintiffs have failed to allege any information about the nature of their religious
11
beliefs or practices, their job duties, or their accommodation requests. To proceed
12
13 past the pleading stage, the plaintiff’s factual allegations, accepted as true, must state a
14 claim that is “plausible on its face.” Twombly, 550 U.S. at 570. Here, Plaintiffs have
15
made no factual allegations that can be evaluated under the relevant legal framework.
16
17 The Court should dismiss these claims for failure to state a claim.
18
IV. Conclusion
19
20 For the reasons set forth above, Federal Defendants respectfully request that
21
Plaintiff’s claims against Federal Defendants all be dismissed either for lack of subject
22
23 matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or for failure to state a claim
24 pursuant to Fed. R. Civ. P. 12(b)(6), and that Federal Defendants be dismissed as
25
parties to this suit.
26
27
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 20
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DATED this 18th day of January 2022.
1
Vanessa R. Waldref
2
United States Attorney
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s/Molly M.S. Smith
4
John T. Drake
5 Molly M.S. Smith
Assistant United States Attorneys
6
Attorneys for Federal Defendants
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 21
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Case 4:21-cv-05148-TOR ECF No. 59 filed 01/18/22 PageID.936 Page 26 of 26
CERTIFICATE OF SERVICE
1
2 I hereby certify that on January 18, 2022, I caused to be delivered via the
3
method listed below the document to which this Certificate of Service is attached
4
(plus any exhibits and/or attachments) to the following:
5
6 NAME & ADDRESS Method of Delivery
7
Nathan J. Arnold ☒CM/ECF System
8 Arnold & Jacobowitz PLLC ☐Electronic Mail
9 2701 First Avenue, Suite 200 ☐U.S. Mail
Seattle, WA 98121
10 ☐Other: _______________________
nathan@CAJlawyers.com
11
Simon Peter Serrano ☒CM/ECF System
12 Silent Majority Foundation ☐Electronic Mail
5426 N. Rd. 68, Ste. D, Box 105
13 ☐U.S. Mail
Pasco, WA 99301
14 pete@silentmajorityfoundation.org ☐Other: _______________________
15
Mark N. Bartlett ☒CM/ECF System
16 Arthur A. Simpson ☐Electronic Mail
Sarah Cox
17 ☐U.S. Mail
Davis Wright Tremaine LLP
18 920 Fifth Avenue, Suite 3300 ☐Other: _______________________
19 Seattle, WA 98104-1610
markbartlett@dwt.com
20 arthursimpson@dwt.com
21 sarahcox@dwt.com
22
Kevin C. Baumgardner ☒CM/ECF System
23 Corr Cronin LLP ☐Electronic Mail
1001 Fourth Ave., Suite 3900
24 ☐U.S. Mail
Seattle, WA 98154
25 kbaumgardner@corrcronin.com ☐Other: _______________________
26
27 s/Molly M.S. Smith
Molly M.S. Smith
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 22
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