Federal Contractor Motion To Dismiss Amended
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Federal Defendants' Motion to Dismiss Amended Complaint in David G. Donovan, et al. v. Joseph R. Biden, et al., case 4:21-CV-05148-TOR, in the U.S. District Court for the Eastern District of Washington, filed February 1, 2022 as ECF No. 68. Defendants Joseph R. Biden, Jennifer Granholm and Brian Vance move under Rule 12(b)(1) and (6) to dismiss the Amended Complaint, brought by federal employees and federal contractor employees at the Department of Energy Hanford Site challenging COVID-19 vaccination mandates in two September 9, 2021 Executive Orders. The motion argues that most of the 314 plaintiffs lack standing, that no claim is stated against Brian Vance, and that the statutory, constitutional and APA claims fail. It also asks the Court to strike the jury demand. The 35-page filing ends with a certificate of service.
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Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1071 Page 1 of 35
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 DAVID G. DONOVAN, D
CHRISTOPHER J. HALL, STEPHEN C. No. 4:21-CV-05148-TOR
12 PERSONS, THOMAS R. ARDAMICA,
et al.,
13 FEDERAL DEFENDANTS’
Plaintiffs, MOTION TO DISMISS AMENDED
14 COMPLAINT
v.
15
JOSEPH R. BIDEN, in his official 03/25/2022
16 Without Oral Argument
capacity as President of the United States
17 of America, JENNIFER
GRANHOLM, in her official capacity as
18 Secretary of the UNITED STATES
19 DEPARTMENT OF ENERGY, BRIAN
VANCE in his official capacity as
20 Manager of the UNITED STATES
DEPARTMENT OF ENERGY Hanford
21 Site, VALERIE MCCAIN, in her official
capacity as Vit Plant Project Director,
22 BECHTEL, SCOTT SAX in his official
23 capacity as President and Project
Manager of CENTRAL PLATEAU
24 CLEANUP COMPANY, ROBERT
WILKINSON in his official capacity as
25 President and Program Manager of
26 HANFORD MISSION INTEGRATED
SOLUTIONS, LLC., DON HARDY in
27 his official capacity as Manager of
HANFORD LABORATORIES
28 MANAGEMENT AND INTEGRATION
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT - i
30
Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1072 Page 2 of 35
222-S LABORATORY MANAGER,
1 HIRAM SETH WHITMER in his official
2 capacity as President and Program
Manager, HPM CORPORATION,
3 STEVEN ASHBY in his official capacity
as Laboratory Director, PACIFIC
4 NORTHWEST NATIONAL
LABORATORY, JOHN ESCHENBERG
5 in his official capacity as President and
6 Chief Executive Officer of
WASHINGTON RIVER PROTECTION
7 SOLUTIONS,
8 Defendants.
9
10
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15
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT - ii
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Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1073 Page 3 of 35
TABLE OF CONTENTS
1
2
I. Introduction and Procedural History ................................................................ 1
3
II. Motion to Dismiss Standard................................................................................ 3
4
5 III. Argument .............................................................................................................. 4
6 A. Plaintiffs still fail to state any claim against Brian Vance. .............................. 4
7 B. The overwhelming majority of Plaintiffs lack standing to sue. ....................... 5
8 i. Plaintiffs who have not applied for any exception face self-inflicted
9 injuries that cannot support standing. .......................................................... 6
10 ii. Plaintiffs who have already been vaccinated or who have been provided
11 accommodations do not face an injury that gives them standing. ................ 8
12 iii. Plaintiffs who have not alleged their exception status have not met their
burden of establishing jurisdiction. .............................................................. 9
13
14 iv. Plaintiffs who have not yet had their accommodation requests
determined raise unripe claims................................................................... 10
15
C. Federal Defendants are not subject to ADA employment discrimination
16 liability (Count 3) as a matter of law. ............................................................. 12
17
D. Plaintiffs’ wrongful termination claim (Count 4) remains premature and
18 barred by sovereign immunity. ....................................................................... 13
19
E. Plaintiffs’ state law claims (Counts 5 and 6) remain insufficiently pled and
20 barred by sovereign immunity. ....................................................................... 14
21 F. Plaintiffs do not state a viable cause of action for violation of the
22 Procurement Act and their arguments fail on the merits (Count 8) ............... 15
23 G. The President is statutorily not subject to the Office of Federal Procurement
24 Policy Act (Count 9). ...................................................................................... 23
25 H. Plaintiffs’ constitutional structural arguments (Counts 10–13, 17) are not
26 standalone causes of action and are insufficiently pled.................................. 23
27 I. Plaintiffs’ APA claims (Counts 14–16) fail for lack of a proper defendant. . 25
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT - iii
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Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1074 Page 4 of 35
J. Plaintiffs fail to adequately plead their equal protection challenge (Count 2). ..
1
....................................................................................................................... 25
2
K. The vaccination mandates do not violate Plaintiffs’ substantive due process
3 rights (Count 7). .............................................................................................. 26
4
L. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1). ... 27
5
M. Plaintiffs’ Section 1983 claim (Count 18) cannot stand as an independent
6
cause of action and cannot be asserted against Federal Defendants. ............. 28
7
8 IV. Conclusion........................................................................................................... 29
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS AMENDED COMPLAINT - iv
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Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1075 Page 5 of 35
Defendants Joseph R. Biden, Jennifer Granholm, and Brian Vance, through
1
2 counsel, respectfully move to dismiss Plaintiffs’ Amended Complaint (ECF No. 60)
3
pursuant to Fed. R. Civ. P. 12(b)(1) and (6) and to dismiss Federal Defendants as
4
parties to this suit.
5
6
I. Introduction and Procedural History
7
The ongoing COVID-19 pandemic poses a serious threat to public health and
8
9 the economy. The illness and mortality caused by COVID-19 have led to serious
10 disruptions for organizations, employees, and contractors across the United States, and
11
the federal government is no exception. Accordingly, on September 9, 2021, the
12
13 President issued two Executive Orders aimed at preventing disruptions in the
14 provision of government services by federal employees and contractors by combatting
15
the spread of COVID-19. See Requiring Coronavirus Disease 2019 Vaccination for
16
17 Federal Employees, Exec. Order No. 14043, 86 Fed. Reg. 50,989, (Sept. 9, 2021)
18 (“Employee Order”); Ensuring Adequate COVID Safety Protocols for Federal
19
Contractors, Exec. Order No. 14,042, 86 Fed. Reg. 50,985 (Sept. 9, 2021)
20
21 (“Contractor Order”).
22 Plaintiffs, a group of federal employees and federal contractor employees
23
associated with the Department of Energy (“DOE”) Hanford Site, filed an initial
24
25 Complaint seeking to challenge these vaccination mandates. ECF No. 1. Plaintiffs
26 sought preliminary injunctive relief, which the Court denied. ECF No. 58. Federal
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 1
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Defendants then moved to dismiss the initial Complaint. ECF No. 59. Plaintiffs then
1
2 filed their Amended Complaint as a matter of course. ECF No. 60.
3
The Amended Complaint differs from the initial Complaint in that it corrects
4
the case caption, adds one Federal Defendant and twenty-two Plaintiffs, and offers an
5
6 updated discussion of what accommodations have been provided to which Plaintiffs.
7
But the underlying procedural and jurisdictional flaws remain the same. The now-314
8
9 Plaintiffs apparently seek class action results from claims that require individualized
10 evaluation, and they fail to sufficiently plead facts to support those individualized
11
claims. And while Plaintiffs wish to assert certain arguments about the legality of the
12
13 Executive Orders, that does not exempt them from constitutional standing
14 requirements or the Federal Rules of Civil Procedure. Particularly in a case of this
15
size, Plaintiffs’ failures to meet basic pleading standards are fatal. Even accepting
16
17 Plaintiffs’ current factual allegations as true, Plaintiffs’ claims against Federal
18 Defendants should be dismissed, as all causes of action asserted against Federal
19
Defendants are either nonjusticiable or fail to state a claim.1
20
21
22
23
24
25
1
Federal Defendants also move the Court to strike Plaintiffs’ jury demand, as
26 Plaintiffs identify no relevant waiver of sovereign immunity that entitles them to a
27
jury trial. Fed. R. Civ. P. 39(a)(2).
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 2
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II. Motion to Dismiss Standard
1
2 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is
3
addressed to the court’s subject matter jurisdiction. Questions of justiciability are
4
“inherently jurisdictional.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir.
5
6 2007). A court may not hear claims over which it lacks subject-matter jurisdiction.
7
Fed. R. Civ. P. 12(h)(3). A Rule 12(b)(1) motion may be classified as either facial, in
8
9 which case the court’s inquiry is limited to the allegations in the complaint, or factual,
10 in which case the court may consider extrinsic evidence. Safe Air for Everyone v.
11
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In resolving a factual attack on
12
13 jurisdiction, the district court may review evidence beyond the complaint without
14 converting the motion to dismiss into a motion for summary judgment.” Id. The
15
party asserting jurisdiction bears the burden of proof on the issue. See Lujan v. Defs.
16
17 of Wildlife, 504 U.S. 555, 561 (1992).
18 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
19
addressed to the sufficiency of the pleading of claims in the complaint. Federal Rule
20
21 of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing
22 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To proceed past the
23
pleading stage, the plaintiff’s factual allegations, accepted as true, must state a claim
24
25 that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
26 A claim is plausible when the plaintiff pleads facts that allow the court to “draw the
27
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 3
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v. Iqbal, 556 U.S. 662, 678 (2009). While detailed factual recitations are not required,
1
2 the plaintiff must come forward with more than “unadorned, the-defendant-
3
unlawfully-harmed-me” allegations. Id. Formulaic recitations of the elements of a
4
claim, supported by mere labels and conclusions, are not sufficient. Twombly, 550
5
6 U.S. at 555.
7
8 III. Argument
9 A. Plaintiffs still fail to state any claim against Brian Vance.
10 As the Court correctly ruled at the TRO stage, Plaintiffs did not state a claim for
11 relief against Defendant Vance in their initial Complaint. ECF No. 58 at 4. Plaintiffs’
12
Amended Complaint still fails to state any claim against Defendant Vance. The
13
14 Amended Complaint makes a more elaborate statement of identification in naming
15 Brian Vance as the manager of the Hanford Site. ECF No. 60 at ¶ 18. But Plaintiffs
16
still have not alleged any facts to indicate how Defendant Vance is plausibly liable for
17
18 any of the specific causes of action asserted, beyond the conclusory allegation that
19 Vance “has directed Hanford sitewide enforcement and implementation” of the two
20
challenged Executive Orders. In failing to make any other factual allegation regarding
21
22 Defendant Vance, Plaintiffs fail to offer more than insufficient “unadorned, the-
23 defendant-unlawfully-harmed-me” allegations. Iqbal, 556 U.S. at 678. The Court
24
should dismiss all claims asserted against Defendant Vance.
25
26
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 4
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B. The overwhelming majority of Plaintiffs lack standing to sue.
1
Federal Defendants previously submitted detailed briefing challenging every
2
3 Plaintiff’s standing to sue in this case. ECF No. 59 at 4–11. The Amended Complaint
4
now alleges sufficient facts to indicate, accepting those allegations as true, that five
5
Plaintiffs have suffered an actual and concrete injury, not of their own making, that
6
7 supports their standing to sue. ECF No. 60 at ¶¶ 77, 79, 142, 183, 263. However, the
8
remaining 309 Plaintiffs continue to lack standing, and the Court lacks jurisdiction
9
10 over their claims. Although the Amended Complaint now makes different specific
11 factual allegations regarding the individual Plaintiffs’ circumstances, these Plaintiffs’
12
claims still largely fall into the same categories of being unripe, lacking injury, facing
13
14 self-inflicted injuries, or insufficiently pleading their claims.
15 Article III courts are courts of limited jurisdiction, and questions of
16
justiciability are “inherently jurisdictional.” See Corrie, 503 F.3d at 981. Challenges
17
18 to standing are properly asserted in a Rule 12(b)(1) motion. Chandler v. State Farm
19 Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). The “irreducible
20
constitutional minimum of standing” requires that the plaintiff suffer an “injury in
21
22 fact” that is “concrete and particularized” and “actual or imminent,” that there is a
23 “causal connection between the injury and the conduct complained of,” and that it is
24
“likely” that the injury is redressable by a favorable decision. Lujan, 504 U.S. at 560–
25
26 61 (citations omitted).
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 5
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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 jeopardizing their continued employment.
3
They explicitly identify their “imminent and wrongful termination” as the harm they
4
face. ECF No. 60 at ¶ 9. But as in the initial Complaint, the vast majority of Plaintiffs
5
6 do not presently face this injury, and if they do, that injury is self-inflicted. Accepting
7
as true at this stage of the proceedings that Plaintiffs have good-faith medical or
8
9 religious objections to vaccination, Plaintiffs are able to pursue an exception and
10 accommodations from the vaccine mandates. Based on the allegations now raised in
11
the Amended Complaint, Plaintiffs have generally pursued that option as follows: (1)
12
13 some have not applied for an exception to the vaccination requirement; (2) some are
14 already vaccinated or have been granted an accommodation; (3) some have not
15
alleged the status of any request for an exception; and (4) some have sought an
16
17 exception but have not yet had accommodations determined. For slightly different
18 reasons, each of these plaintiff categories lack standing to pursue their claims.
19
20 i. Plaintiffs who have not applied for any exception face self-inflicted
injuries that cannot support standing.
21
22 Three Plaintiffs in this case affirmatively pled that they have not applied for an
23 exception to their employers’ implementation of the vaccine mandates. ECF No. 60 at
24
¶¶ 58, 185, 235. One other Plaintiff alleges he moved out of state before his
25
26 accommodation request was determined, and he has since been terminated because he
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 6
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cannot telework from out of state. ECF No. 60 at ¶ 50. These Plaintiffs lack standing
1
2 because their injuries are self-imposed.
3
In order to meet the causation requirement of the standing test, a plaintiff’s
4
injury must be “fairly traceable to the challenged action.” Monsanto Co. v. Geertson
5
6 Seed Farms, 561 U.S. 139, 149 (2010). Plaintiffs “cannot manufacture standing
7
merely by inflicting harm on themselves,” as such harms are not fairly traceable to the
8
9 defendant’s conduct. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013). The
10 Executive Orders challenged here implement vaccination requirements, but they allow
11
for exceptions as required by law. Plaintiffs who have good-faith medical or religious
12
13 objections to vaccination have the ability to seek exceptions from the requirement by
14 seeking accommodations from their employers. But the three Plaintiffs who have
15
declined to pursue exceptions, and the one who disqualified himself from employment
16
17 before completing that process, do not face potential termination because the vaccine
18 mandates unduly burden their legal rights; rather, they are facing potential
19
termination, or actual termination, because they declined to fully pursue the exception
20
21 and accommodation process available to them. That injury is not traceable to Federal
22 Defendants. Because these Plaintiffs’ claimed injuries are self-inflicted, they are
23
insufficient to support standing to sue Federal Defendants, and these Plaintiffs should
24
25 be dismissed from this case.
26
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 7
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ii. Plaintiffs who have already been vaccinated or who have been
1
provided accommodations do not face an injury that gives them
2 standing.
3 The Plaintiffs in this case who are already vaccinated, and those who have
4
received accommodations from their employers, do not have standing in this case
5
because they are fully compliant with the vaccination mandates and do not face the
6
7 injuries alleged in the Amended Complaint.
8
The “injury in fact” component of standing “requires that the party seeking
9
10 review be himself among the injured.” Lujan, 504 U.S. at 563 (citation omitted). Of
11 the now-314 Plaintiffs in this case, 65 have alleged that they have been granted some
12
form of accommodation by their employer. ECF No. 60 at ¶¶ 34–36, 44, 47, 51, 53,
13
14 57, 61, 62, 64, 71, 75, 81, 85, 90, 92, 100, 103, 106, 127, 129, 134, 138, 139, 146,
15 152, 155, 158, 172–74, 182, 188, 196, 198, 206, 214–18, 231, 234, 2326, 239, 241,
16
251, 276, 280, 281, 284, 300, 312–16, 322–24, 334. Three other Plaintiffs have
17
18 alleged that they are already fully vaccinated, and are therefore compliant with the
19 vaccination mandate. ECF No. 60 at ¶¶ 82, 116, 184. Together, these 68 Plaintiffs do
20
not face termination from their employment based on the challenged vaccination
21
22 mandates because they are fully compliant with the vaccination requirement, either by
23 becoming fully vaccinated or by obtaining a legal exception from the policy. These
24
Plaintiffs therefore do not face the injury they allege to support their standing to sue in
25
26 this case, and their claims should be dismissed.
27
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 8
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iii. Plaintiffs who have not alleged their exception status have not met
1
their burden of establishing jurisdiction.
2
Some Plaintiffs have not alleged any information about whether they have
3
4 sought exception requests, and therefore have not sufficiently pled information to
5
establish that they have standing to sue. “The party invoking federal jurisdiction bears
6
the burden of establishing standing.” Clapper, 568 U.S. at 411–12 (citation and
7
8 quotation marks omitted). Since standing is “an indispensable part of the plaintiff’s
9
case, each element must be supported in the same way as any other matter on which
10
11 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
12 required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
13
Nineteen Plaintiffs here have alleged their job titles, but have alleged no
14
15 information about their vaccination status, the nature of their objection, or whether
16 they have pursued an exception from the vaccination requirement. ECF No. 60 at
17
¶¶ 45, 195, 111–13, 121, 132, 146–47, 161, 203, 221, 225, 232–33, 238, 287, 290,
18
19 317, 326, 333. Three others have alleged that they are partially vaccinated, but do not
20 indicate whether they have pursued an exception from the remainder of the
21
vaccination requirement. ECF No. 60 at ¶¶ 126, 142, 266. These allegations are
22
23 insufficient to meet Plaintiffs’ burden of establishing they have standing. If any of
24 these Plaintiffs who have good-faith religious or medical objections did not apply for
25
an exception from the vaccination requirement, they fall into the first category of
26
27 plaintiffs whose injuries are self-inflicted and not traceable to the challenged
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 9
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Executive Orders. If any of these Plaintiffs are granted accommodations, they will be
1
2 compliant with the vaccination requirement and will fall into the second category of
3
plaintiffs who do not face any imminent injury in fact. Without alleging more
4
information, it is impossible to tell whether these Plaintiffs have standing.2 They
5
6 therefore fail to meet their burden of establishing standing at this stage in the
7
proceedings, and their claims should be dismissed.
8
9 iv. Plaintiffs who have not yet had their accommodation requests
10 determined raise unripe claims.
11 The remainder of the individually named Plaintiffs allege that they have not yet
12 been granted accommodations, generally following the pattern pleading that the
13
Plaintiff has “submitted a religious and/or medical exemption, “accepted by” the
14
15 employer, “but has been provided no accommodation” or “was originally not provided
16 an accommodation.” The Court should dismiss these claims as unripe.
17
The ripeness doctrine guards against “premature adjudication” of abstract
18
19 disagreements and theoretical harms. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538
20
2
21 Broadening a flaw from the initial Complaint, eight Plaintiffs now fail to identify
22 their employers, so it is impossible to determine from the pleadings whether these
23
Plaintiffs are even subject to either Executive Order. ECF No. 60 at ¶¶ 40, 84, 92,
24
25 158, 171, 270, 317, 326. Additionally, several Plaintiffs appear to be suing employers
26 that are not named as defendants in this matter. See ECF No. 60 at ¶¶ 48, 236, 241.
27
These Plaintiffs similarly fail to meet their burden to show standing.
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 10
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U.S. 803, 807–08 (2003) (citation omitted). Ripeness contains both a constitutional
1
2 and a prudential component. Coons v. Lew, 762 F.3d 891, 897 (9th Cir. 2014). The
3
constitutional component derives from Article III, which limits the jurisdiction of
4
federal courts to deciding actual cases or controversies. Id. A case is not
5
6 “constitutionally” ripe when the plaintiff’s entitlement to relief depends on
7
“contingent future events that may not occur as anticipated, or indeed may not occur
8
9 at all.” Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam) (citation
10 omitted). The prudential component of the ripeness inquiry focuses on whether the
11
issues in the case are “fit for review” on the record presented. Nat’l Park Hosp. Ass’n,
12
13 538 U.S. at 812. The key consideration is whether “further factual development
14 would significantly advance [the Court’s] ability to deal with the legal issues
15
presented.” Id. (quotation and citation omitted); see also In re Coleman, 560 F.3d
16
17 1000, 1009 (9th Cir. 2009) (prudential considerations allow courts to “delay
18 consideration of the issue until the pertinent facts have been well-developed in cases
19
where further factual development would aid the court’s consideration”).
20
21 As the Court previously recognized at the TRO stage, Plaintiffs’ misleading
22 pleading language reveals that their claims are unripe. ECF No. 58 at 12–14.
23
Plaintiffs still do not allege that their requested accommodations have been denied,
24
25 and therefore they do not face their alleged “imminent and wrongful termination”
26 from employment with DOE or a Hanford contractor. ECF No. 60 at ¶ 9. Although
27
Plaintiffs’ word choice has changed from the initial Complaint to the Amended
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 11
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Complaint, the jurisdictional flaws remain the same: allegations that a Plaintiff “was
1
2 not provided an accommodation” or “was not originally provided an accommodation”
3
are still not allegations that the Plaintiff was actually denied an accommodation. 3 As
4
both a constitutional and prudential matter, Plaintiffs have failed to allege claims that
5
6 are ripe for review. The Court should dismiss these claims for lack of standing.
7
8 C. Federal Defendants are not subject to ADA employment discrimination
liability (Count 3) as a matter of law.
9
Plaintiffs’ third cause of action asserts a claim for failure to provide reasonable
10
11 accommodations as required by the ADA. ECF No. 60 at ¶¶ 378–89. Again, absent
12 sufficient pleading of this legal theory as asserted by “[s]ome Plaintiffs,” Federal
13
Defendants are left to assume that this claim is being asserted against them in some
14
15 capacity. Id. at ¶ 379.
16 If Plaintiffs’ claim is construed as a facial challenge to the two Executive
17
Orders, this claim fails because both Executive Orders provide for vaccination
18
19 exceptions as required by law. 86 Fed. Reg. 50,989; 86 Fed. Reg. 50,985. And if
20 Plaintiffs’ claim is construed as an as-applied challenge brought against Federal
21
22 3
In fact, the allegation that certain Plaintiffs were not “originally” accommodated can
23
alternatively be read to mean that the accommodation is either still pending or has
24
25 already been granted. If these Plaintiffs have actually been granted accommodations,
26 then they fall into the category of Plaintiffs who do not face an injury supporting
27
standing.
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 12
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Defendants by the Federal Employee Plaintiffs, they still fail to state a claim, as the
1
2 ADA does not apply to the federal government as an employer. Zimmerman v. Or.
3
Dep’t of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). Even if Plaintiffs had
4
sufficiently pled facts in support of this claim, it would still fail as a matter of law.
5
6 The Court should dismiss this claim against Federal Defendants.
7
8 D. Plaintiffs’ wrongful termination claim (Count 4) remains premature and
barred by sovereign immunity.
9
Count 4 of the Amended Complaint asserts a claim for wrongful termination in
10
11 violation of Title VII of the Civil Rights Act and the Washington Law Against
12 Discrimination (“WLAD”). ECF No. 60 at ¶¶ 390–93. Federal Defendants are again
13
left to assume this count is asserted against them by the eight Federal Employee
14
15 Plaintiffs. The Court should dismiss this claim for several reasons.
16 First, and fatally, the Complaint does not allege that any of the Federal
17
Employee Plaintiffs have been terminated. Plaintiffs cannot state a facially plausible
18
19 claim for wrongful termination of any kind if they have not yet been terminated. See
20 Twombly, 550 U.S. at 570.
21
Second, to the extent Federal Employee Plaintiffs assert a Title VII claim, the
22
23 Court lacks jurisdiction over this claim because Plaintiffs have failed to exhaust their
24 administrative remedies prior to bringing a Title VII claim against the federal
25
government. See Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1196 (9th Cir. 1989)
26
27
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 13
30
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(failure to file Title VII suit within the 30-day time limit from receipt of notice of final
1
2 EEOC action is a jurisdictional defect).
3
Finally, to the extent Federal Employee Plaintiffs assert a claim for violation of
4
WLAD against Federal Defendants, that claim is barred by sovereign immunity.
5
6 Federal Defendants are sued here in their official capacities, and therefore cannot be
7
liable under state law unless Congress has waived the United States’ sovereign
8
9 immunity. See Ibrahim v. Dep’t of Homeland Sec., 538 F.3d 1250, 1258 (9th Cir.
10 2008). Congress has not waived the United States’ sovereign immunity for WLAD
11
claims, so Plaintiffs’ WLAD claim against Federal Defendants is barred. The Court
12
13 should dismiss this claim against Federal Defendants.
14
E. Plaintiffs’ state law claims (Counts 5 and 6) remain insufficiently pled
15 and barred by sovereign immunity.
16 Notwithstanding the Court’s prior declination of supplemental jurisdiction over
17
Plaintiffs’ state law claims, ECF No. 58 at 9, Plaintiffs again assert state law claims
18
19 for breach of contract and intentional or negligent infliction of emotional distress.
20 ECF No. 60 at ¶¶ 394–404. Plaintiffs’ conclusory assertions in support of these
21
claims again fail Rule 12’s plausible pleading standard. Twombly, 550 U.S. at 570.
22
23 On their breach of contract claim, Plaintiffs’ operative allegations remain the
24 same: “[t]here exists a binding contract relationship between each Plaintiff and his or
25
her individual employer” and “Defendants have made it clear they intend to breach
26
27 each Plaintiffs’ contract with the respective Defendant.” ECF No. 60 at ¶¶ 395, 397.
28
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Plaintiffs still do not identify any specifics about what “binding contract relationship”
1
2 exists between them and Federal Defendants, nor do they identify what contract term
3
is about to be breached. Plaintiffs also develop no theory in support of their vague
4
Takings Clause argument. ECF No. 60 at ¶ 398. And again, Plaintiffs’ language here
5
6 exposes the ripeness issue that permeates this case—an allegation that Defendants
7
supposedly “intend to breach” a contract is not an allegation that Defendants have
8
9 breached a contract. Plaintiffs fail to sufficiently allege a breach of contract claim.
10 Plaintiffs’ claim for intentional or negligent infliction of emotional distress
11
remains identical in substance to the initial Complaint, asserting only that “Defendants
12
13 engaged in extreme and outrageous conduct toward Plaintiffs” and that Plaintiffs have
14 been injured. ECF No. 60 at ¶¶ 400–04. Plaintiffs again plead no specific factual
15
allegations in support of this claim. Plaintiffs’ conclusory recitation of the elements of
16
17 an IIED/NIED claim amount to nothing more than “unadorned, the-defendant-
18 unlawfully-harmed-me” allegations that fail to state a claim. Iqbal, 556 U.S. at 678.
19
And as to both Counts 5 and 6, Plaintiffs’ state law claims against Federal
20
21 Defendants are barred by sovereign immunity. Ibrahim, 538 F.3d at 1258. The Court
22 should dismiss Counts 5 and 6 of the Complaint against Federal Defendants.
23
24 F. Plaintiffs do not state a viable cause of action for violation of the
Procurement Act and their arguments fail on the merits (Count 8)
25
Plaintiffs purport to assert a statutory cause of action for violation of the
26
27 Procurement Act, 40 U.S.C. §§ 101, 121. ECF No. 60 at ¶¶ 410–24. But Plaintiffs
28
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fail to identify any authority that permits them to assert the Procurement Act itself as a
1
2 privately enforceable cause of action. The Court should dismiss this claim as
3
improperly pled.
4
Moreover, Plaintiff’s arguments about the Procurement Act fail on the merits.
5
6 The Contractor Order is a valid exercise of the President’s authority to direct federal
7
contracting.4 The purpose of the Procurement Act is “to provide the Federal
8
9 Government with an economical and efficient system” for, among other things,
10 “procuring and supplying property and nonpersonal services.” 40 U.S.C. § 101. The
11
Procurement Act empowers the President to “prescribe policies and directives that the
12
13 President considers necessary to carry out” the Act’s provisions, so long as the
14 directives are “consistent” with the Act. 40 U.S.C. § 121(a).
15
Presidential directives are consistent with this authority if they are “reasonably
16
17 related to the Procurement Act’s purpose of ensuring efficiency and economy in
18 government procurement.” Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170 (4th
19
Cir. 1981). Courts have “emphasized the necessary flexibility and ‘broad-ranging
20
21 authority’” that the Procurement Act provides. UAW-Labor Emp. and Training Corp.
22
23 4
The Contractor Order presently remains enjoined on a nationwide basis while an
24
25 appeal of the preliminary injunction is pending in the Eleventh Circuit Court of
26 Appeals. Georgia v. Biden, No. 21-14269. Briefing in that appeal is expected to be
27
completed in late February, and the case is not yet scheduled for oral argument.
28
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v. Chao, 325 F.3d 360, 366 (D.C. Cir. 2003) (quoting AFL-CIO v. Kahn, 618 F.2d
1
2 784, 789 (D.C. Cir. 1979) (en banc)). The standard is “lenient” and can be satisfied
3
even when “the order might in fact increase procurement costs” in the short run. Id. at
4
366–67. Courts find a nexus even when “[t]he link may seem attenuated” and even if
5
6 one can “advance an argument claiming opposite effects or no effects at all.” Id.
7
“[T]his close nexus requirement [] mean[s] little more than that President’s
8
9 explanation for how an Executive Order promotes efficiency and economy must be
10 reasonable and rational.” Chamber of Com. of U.S. v. Napolitano, 648 F. Supp. 2d
11
726, 738 (D. Md. 2009) (one sentence explanation sufficient); see also Chamber of
12
13 Com. of U.S. v. Reich, 74 F.3d 1322, 1333 (D.C. Cir. 1996) (“The President’s
14 authority to pursue ‘efficient and economic’ procurement . . . certainly reach[es]
15
beyond any narrow concept of efficiency and economy in procurement.”). And
16
17 indeed, the Procurement Act has been interpreted to allow the President to direct
18 federal contracting as it relates to a variety of substantive issues. See, e.g., City of
19
Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901 (10th Cir. 2004) (urban renewal);
20
21 Chao, 325 F.3d 360 (collective bargaining rights); Am. Fed’n of Gov’t Emps., AFL-
22 CIO v. Carmen, 669 F.2d 815 (D.C. Cir. 1981) (energy conservation during an oil
23
crisis); Kahn, 618 F.2d at 790 (noting multiple Presidents “prominent[ly]” used
24
25 FPASA to impose “a series of anti-discrimination requirements for Government
26 contractors”); Napolitano, 648 F. Supp. 2d at 729 (assessing employee work
27
eligibility through E-Verify). The Procurement Act “emphasiz[es] the leadership role
28
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of the President in setting Government-wide procurement policy on matters common
1
2 to all agencies” and expects “the President [to] play a direct and active part in
3
supervising the Government’s management functions.” Kahn, 618 F.2d at 788.
4
As this Court has already recognized, the Contractor Order “easily satisfies the
5
6 nexus requirement” of the Procurement Act. ECF No. 58 at 16. The President
7
explained in Section 1 of the Contractor Order:
8
9 This order promotes economy and efficiency in Federal procurement by
ensuring that the parties that contract with the Federal Government provide
10 adequate COVID-19 safeguards to their workers performing on or in
11 connection with a Federal Government contract . . . . These safeguards will
decrease the spread of COVID-19, which will decrease worker absence, reduce
12 labor costs, and improve the efficiency of contractors and subcontractors at sites
13 where they are performing work for the Federal Government.
14 86 Fed. Reg. at 50,985.
15
The Contractor Order is concerned with protecting the federal government’s
16
17 financial and operational interests as a contracting party. Ensuring that its contractors
18 do not suffer major disruptions from COVID-19 accomplishes just that. COVID-19 is
19
an airborne disease that spreads quickly, so in order to ensure that contractors do not
20
21 spread COVID-19 to one another, all contractors working in any given physical
22 workspace must be vaccinated. This is fully explained by the OMB Determination’s
23
approval of the Safer Workforce Taskforce’s COVID-19 safety protocols, which lays
24
25 out that increased vaccinations will “decrease the spread of COVID-19, which will in
26 turn decrease worker absence, save labor costs on net, and thereby improve efficiency
27
in Federal contracting.” Determination of the Acting OMB Director Regarding the
28
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Revised Safer Federal Workforce Taskforce Guidance for Federal Contractors, 86
1
2 Fed. Reg. 63,418, 63,421–22 (Nov. 16, 2021). To anyone who has lived through the
3
COVID-19 pandemic and its resulting economic turmoil, the nexus between reducing
4
the spread of COVID-19 and economic efficiency should be self-evident. While
5
6 Plaintiffs may disagree with the President’s policy or consider it unwise, the
7
Executive Order’s explanation is sufficient to show the required nexus between the
8
9 policy and promoting economy and efficiency.
10 Plaintiffs’ new reliance on the Supreme Court’s recent decision in National
11
Federation of Independent Business v. Occupational Safety and Health
12
13 Administration (NFIB), 142 S. Ct. 661 (2022) (per curiam) is misplaced. ECF No. 60
14 at ¶¶ 6–8. The Supreme Court’s statutory analysis in NFIB rested on principles of
15
statutory construction that apply only where an administrative agency’s action would
16
17 bring about an enormous and transformative expansion of its regulatory authority—
18 not where, as here, the President exercises well-established power to manage the
19
federal government’s proprietary interests. In NFIB, the Supreme Court considered
20
21 whether the Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 651 et
22 seq., authorized the Occupational Safety and Health Administration (“OSHA”) to
23
issue an emergency temporary standard requiring “virtually all employers with at least
24
25 100 employees” to impose COVID-19 vaccination-or-testing obligations on their
26 employees. 142 S. Ct. at 662, 665. Based on its observation that OSHA’s mandate
27
applies to “84 million Americans” and represents a significant expansion of OSHA’s
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 19
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regulatory authority, the Court relied on the proposition that Congress is expected “to
1
2 speak clearly when authorizing an agency to exercise [such] powers of vast economic
3
and political significance.” Id. at 665 (quoting Ala. Ass’n of Realtors v. Dep’t of
4
Health and Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam)). The Court held
5
6 that Congress had not “plainly authorized” OSHA’s vaccination-or-test standard
7
because the OSH Act permits OSHA to regulation only “occupational hazards,” and
8
9 COVID-19 is not a hazard unique to the workplace. Id. at 665–66.
10 The “major questions” principles applied in NFIB are relevant only when an
11
administrative action represents an “enormous and transformative expansion in [an
12
13 agency’s] regulatory authority.” Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324
14 (2014) (emphasis added); accord NFIB, 142 S. Ct. at 665 (“Permitting OSHA to
15
regulate the hazards of daily life . . . would significantly expand OSHA’s regulatory
16
17 authority . . . .”); see also, e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489; King v.
18 Burwell, 576 U.S. 473, 485–86 (2015); Gonzales v. Oregon, 546 U.S. 243, 267–68
19
(2006); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). In
20
21 promulgating the Contractor Order, the President did not exercise “regulatory
22 authority” of any kind. Rather, the President exercised the federal government’s
23
proprietary authority, as the purchaser of goods and services from those with whom it
24
25 contracts. See Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940) (“Like private
26 individuals and businesses, the Government enjoys the unrestricted power . . . to
27
determine those with whom it will deal, and to fix the terms and conditions upon
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 20
30
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which it will make needed purchases.”). Unlike OSHA’s vaccination-or-test standard,
1
2 which directly regulated private employers pursuant to Congress’ Commerce Clause
3
authority, the Contractor Order imposes no generally applicable regulation on any
4
industry, entity, or individual. Instead, as an exercise of Congress’ powers under
5
6 distinct constitutional provisions, including the Spending Clause, the Contractor Order
7
reflects the President’s management decision to do business with only those entities
8
9 willing to perform work for the federal government under certain contractual
10 standards.
11
The Supreme Court’s other recent COVID-19 vaccination decision in Biden v.
12
13 Missouri, 142 S. Ct. 647 (2022) (per curiam), provides this Court with relevant
14 instruction: namely, that the President’s “longstanding practice” of using his authority
15
under the Procurement Act to address a wide range of concerns related to federal
16
17 contractor operations is a strong indication that the Contractor Order is a legitimate
18 exercise of such authority. See Missouri, 142 S. Ct. at 652. In Missouri, the Supreme
19
Court reviewed a Department of Health and Human Services (“HHS”) regulation
20
21 requiring hospitals and other healthcare facilities that participate in Medicare or
22 Medicaid to ensure that their staff are either vaccinated against COVID-19 or receive
23
a religious or medical exception. 142 S. Ct. at 650. Like this case, Missouri involved
24
25 a broad grant of statutory authority related to the expenditure of federal funds.
26 Compare id. at 652 (“Congress has authorized the Secretary to impose conditions on
27
the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 21
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interest of the health and safety of individuals who are furnished services.’” (quoting
1
2 42 U.S.C. § 1395x(e)(9))), with 40 U.S.C. §§ 101, 121 (authorizing the President to
3
“prescribe policies and directives that the President considers necessary” to promote
4
“an economical and efficient system” for federal procurement). Crucially, in
5
6 determining the scope of HHS’s authority, the Supreme Court looked to the agency’s
7
“longstanding practice . . . in implementing the relevant statutory authorities.”
8
9 Missouri, 142 S. Ct. at 652. Based on HHS’s historical practice of imposing
10 “conditions that address the safe and effective provision of healthcare, not simply
11
sound accounting,” the Court rejected a narrow reading of the statute’s broad language
12
13 because it was inconsistent with this historical precedent. Id.
14 Here, the Executive Branch’s longstanding practice of issuing executive orders
15
regarding federal procurement is similarly instructive and underscores the validity of
16
17 the Contractor Order. As the cases cited supra at p. 17 demonstrate, the Procurement
18 Act has long been understood to grant the President broad authority and discretion to
19
manage the federal procurement system, and the Contractor Order is a permissible
20
21 exercise of that authority. Just as the Supreme Court concluded that the Executive
22 Branch may make COVID-19 vaccination a “condition of participation” in Medicare
23
and Medicaid, 142 S. Ct. at 654, this Court should hold that the President, like any
24
25 other contractor, may make COVID-19 vaccination a condition of participation in
26 federal contracting.
27
28
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G. The President is statutorily not subject to the Office of Federal
1
Procurement Policy Act (Count 9).
2
Plaintiffs’ claims for violation of federal procurement policy are unchanged
3
4 from the initial complaint and still fail as a matter of law. Plaintiffs seek to hold the
5
President liable for failing to comply with the notice and comment provisions of the
6
Office of Federal Procurement Policy (“OFPP”) Act. ECF No. 60 at ¶¶ 425–34
7
8 (citing 41 U.S.C. § 1707(a)(1)). Plaintiffs again identify no legal authority that allows
9
them to assert the OFPP Act itself as a cause of action. Moreover, the OFPP Act’s
10
11 notice and comment provision only applies to “executive agencies,” which does not
12 include the President or the White House in its statutory definition. 41 U.S.C. § 133.
13
Because the President is not bound by the OFPP Act’s notice and comment
14
15 procedures, this claim should be dismissed.
16
H. Plaintiffs’ constitutional structural arguments (Counts 10–13, 17) are not
17 standalone causes of action and are insufficiently pled.
18 Plaintiffs raise a series of constitutional structural arguments seeking to
19
invalidate the Executive Orders as generally violating principles of federalism and
20
21 separation of powers. These claims should be dismissed for several reasons.
22 First, Plaintiffs’ abstract legal arguments are untethered to any specific cause of
23
action. Plaintiffs are certainly entitled to assert arguments about the constitutionality
24
25 of the Executive Orders, but in order to state a plausible claim for relief, they must
26 assert those arguments via an actual cause of action. Plaintiffs should be required to
27
re-plead these arguments through a cognizable cause of action.
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 23
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Second, Plaintiffs’ arguments are insufficiently pled. Plaintiffs’ pleading of
1
2 these claims is difficult to discern at best. While Plaintiffs have recited a series of
3
constitutional terms of art, their pleadings jumble multiple distinct constitutional
4
principles in such an incomprehensible way that none of their claims are plausible on
5
6 their face. Twombly, 550 U.S. at 570.
7
As an example, Count 17 of the Complaint purports to raise a Commerce
8
9 Clause challenge to the Executive Orders. But the substance of Count 17 is devoted to
10 arguments about federalism and the anticommandeering principle. ECF No. 60 at
11
¶¶ 496–98. Count 11 of the Complaint purports to claim that the Executive Orders
12
13 violate separation of powers and federalism principles, but the substance of Count 11
14 seems to challenge the constitutionality of the Procurement Act itself under Article I,
15
Section 8 of the Constitution. ECF No. 60 at ¶¶ 449–57. Count 12 of the Complaint
16
17 purports to assert that the Executive Orders violate federalism principles by intruding
18 on states’ police powers, but it is unclear how this cause of action is different from the
19
federalism claims that are also asserted in Count 11 and argued in support of Count
20
21 17. Compare ECF No. 60 at ¶¶ 458–63 with ¶¶ 497–98. While Plaintiffs have recited
22 constitutional law buzzwords, their pleadings are substantively incomprehensible.
23
The Court should dismiss these constitutional structural arguments as insufficiently
24
25 pled.
26
27
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 24
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I. Plaintiffs’ APA claims (Counts 14–16) fail for lack of a proper
1
defendant.
2
Plaintiffs raise three claims that the Federal Acquisition Regulatory (“FAR”)
3
Council’s class deviation, the OMB Determination, and the Executive Orders
4
5 themselves all violate the APA. ECF No. 60 at ¶¶ 468–95. Presumably Plaintiffs
6
again intended to assert all three APA claims against President Biden, as the other
7
8 Federal Defendants have no connection to the promulgation of the Executive Orders,
9 the FAR deviation, or the OMB determination. But the President cannot be sued
10
under the APA. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Because
11
12 Plaintiffs’ APA claims fail to name a proper defendant, they should be dismissed for
13 failure to state a claim.
14
15 J. Plaintiffs fail to adequately plead their equal protection challenge (Count
2).
16
Plaintiffs again assert that their equal protection rights are being violated on the
17
18 basis of their status as having “natural immunity” against COVID-19. ECF No. 60 at
19 ¶ 376. Again, aside from the basic problem that still only a handful of Plaintiffs have
20
alleged their “natural immunity” status, a term that they also fail to define, Plaintiffs
21
22 fail to articulate an equal protection claim. “Natural immunity” is not a suspect class,
23 so Plaintiffs’ equal protection claim is subject to rational basis review. See Tandon v.
24
Newsom, 992 F.3d 916, 930 (9th Cir. 2021). And Plaintiffs wholly fail to plead how
25
26 they are being treated differently than other similarly situated individuals on the basis
27 of their status. See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432,
28
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439 (1985) (“The Equal Protection Clause . . . is essentially a direction that all persons
1
2 similarly situated should be treated alike.”) Plaintiffs’ equal protection claim should
3
be dismissed for failure to state a claim.
4
5 K. The vaccination mandates do not violate Plaintiffs’ substantive due
process rights (Count 7).
6
Plaintiffs have supplemented their substantive due process claim with additional
7
8 caselaw, but their central argument remains foreclosed by longstanding precedent. As
9
the Supreme Court explained in addressing another vaccine mandate over 115 years
10
11 ago, “the liberty secured by the Constitution of the United States to every person
12 within its jurisdiction does not import an absolute right in each person to be, at all
13
times and in all circumstances, wholly freed from restraint.” Jacobson v.
14
15 Massachusetts, 197 U.S. 11, 26 (1905). The Court continued, “[r]eal liberty for all
16 could not exist under the operation of a principle which recognizes the right of each
17
individual person to use his own, whether in respect of his person or his property,
18
19 regardless of the injury that may be done to others.” Id.
20 Courts today continue to rely on Jacobson to find that vaccination requirements
21
such as those at issue here do not burden any “fundamental right ingrained in the
22
23 American legal tradition.” Klaassen v. Tr. of Ind. Univ., 7 F.4th 592, 593 (7th Cir.
24 2021). As the cases cited in Federal Defendants’ TRO opposition brief demonstrate,
25
Plaintiffs do not have a fundamental liberty interest in avoiding vaccination, their
26
27 claims should be evaluated under rational basis review, and numerous courts,
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 26
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including this Court, have recognized that stemming the spread of COVID-19 is a
1
2 legitimate state interest. See ECF No. 41 at 28–30.
3
Plaintiffs’ citation to inapplicable privacy case law does not change this legal
4
landscape. ECF No. 60 at ¶¶ 407. These “unadorned, the-defendant-unlawfully-
5
6 harmed-me” allegations are insufficient to meet Plaintiffs’ pleading burden. Iqbal,
7
556 U.S. at 678. The Court should dismiss Plaintiffs’ substantive due process claims
8
9 for failure to state a claim.
10
L. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1).
11
The Amended Complaint’s free exercise claim contains the same flaws as the
12
13 initial Complaint. To the extent Plaintiffs intended to assert a facial First Amendment
14 challenge to the Executive Orders, such claim would fail on its face because the
15
vaccination mandates each provide for exceptions “as required by law.” 86 Fed. Reg.
16
17 at 50,990; 86 Fed. Reg. at 50,985. And to the extent the Federal Employee Plaintiffs
18 assert an as-applied challenge to the vaccination mandate against Federal Defendants,
19
their claims remain unripe and insufficiently pled.
20
21 First, as discussed supra, no Federal Employee Plaintiff has alleged that their
22 request for religious accommodations has been denied, so their claims are speculative
23
at this point and are therefore unripe for review. Second, even if the Federal
24
25 Employee Plaintiffs had ripe claims, those Plaintiffs have failed to allege any
26 information about the nature of their religious beliefs or practices, their job duties, and
27
the interaction between those things. Plaintiffs purport to assert a claim under the
28
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30
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Religious Freedom Restoration Act (“RFRA”), but they still fail to allege any specific
1
2 facts that would allow this Court, and Federal Defendants, to evaluate their claims
3
under RFRA’s legal framework. Even under the deferential Rule 12 standard, the
4
Court is not required to accept the sincerity of Plaintiffs’ asserted religious objections
5
6 absent any supporting factual allegations. See Burwell v. Hobby Lobby Stores, Inc.,
7
573 U.S. 682, 717 n. 28 (2014) (“To qualify for RFRA’s protection, an asserted belief
8
9 must be ‘sincere’; a [claimant’s] pretextual assertion of a religious belief in order to
10 obtain an exemption . . . would fail.”). To proceed past the pleading stage, the
11
plaintiff’s factual allegations, accepted as true, must state a claim that is “plausible on
12
13 its face.” Twombly, 550 U.S. at 570. Having failed to allege sufficient factual support
14 for their free exercise claims, the Court should dismiss this count for failure to state a
15
claim.
16
17 M. Plaintiffs’ Section 1983 claim (Count 18) cannot stand as an independent
18 cause of action and cannot be asserted against Federal Defendants.
19 Plaintiffs’ final cause of action is a freestanding claim for relief under 42 U.S.C.
20 § 1983. But Section 1983 “merely provides a mechanism for enforcing individual
21
rights ‘secured’ elsewhere,” and therefore does not create a standalone cause of action
22
23 untethered to another alleged legal violation. Gonzaga Univ. v. Doe, 536 U.S. 273,
24
285 (2002) (“[Section] 1983 by itself does not protect anyone against anything”).
25
Additionally, Plaintiffs cannot assert their Section 1983 claim against Federal
26
27 Defendants. Federal actors are only subject to Section 1983 liability in limited
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 28
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circumstances, which Plaintiffs have not alleged here. See Cabrera v. Martin, 973
1
2 F.2d 735, 741 (9th Cir. 1992). Moreover, President Biden is immune from suit for
3
damages related to his official duties. Forrester v. White, 484 U.S. 219, 225 (1988).
4
And although Plaintiffs have also cited Bivens v. Six Unknown Federal Agents of
5
6 Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971), in support of this count,
7
Bivens liability does not extend to federal officials in their official capacity, which is
8
9 the only capacity in which Plaintiffs have named Federal Defendants here. Consejo
10 de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173
11
(9th Cir. 2007); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017) (“[A] Bivens
12
13 action is not a proper vehicle for altering an entity’s policy.” (citation and quotations
14 omitted)). Plaintiffs’ freestanding Section 1983 and/or Bivens claim should be
15
dismissed.
16
17 IV. Conclusion
18 For the reasons set forth above, Federal Defendants respectfully request that
19
Plaintiff’s claims against Federal Defendants all be dismissed either for lack of subject
20
21 matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or for failure to state a claim
22 pursuant to Fed. R. Civ. P. 12(b)(6), and that Federal Defendants be dismissed as
23
parties to this suit.
24
25 //
26 //
27
//
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 29
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DATED this 1st day of February 2022.
1
Vanessa R. Waldref
2
United States Attorney
3
s/Molly M.S. Smith
4
John T. Drake
5 Molly M.S. Smith
Assistant United States Attorneys
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Attorneys for Federal Defendants
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 30
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Case 4:21-cv-05148-TOR ECF No. 68 filed 02/01/22 PageID.1105 Page 35 of 35
CERTIFICATE OF SERVICE
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2 I hereby certify that on February 1, 2022, I caused to be delivered via the
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method listed below the document to which this Certificate of Service is attached
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(plus any exhibits and/or attachments) to the following:
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6 NAME & ADDRESS Method of Delivery
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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
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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: _______________________
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Mark N. Bartlett ☒CM/ECF System
16 Arthur A. Simpson ☐Electronic Mail
Davis Wright Tremaine LLP
17 ☐U.S. Mail
920 Fifth Avenue, Suite 3300
18 Seattle, WA 98104-1610 ☐Other: _______________________
19 markbartlett@dwt.com
arthursimpson@dwt.com
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21 Kevin C. Baumgardner ☒CM/ECF System
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Corr Cronin LLP ☐Electronic Mail
1001 Fourth Ave., Suite 3900
☐U.S. Mail
23 Seattle, WA 98154
kbaumgardner@corrcronin.com ☐Other: _______________________
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s/Molly M.S. Smith
26 Molly M.S. Smith
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS - 31
30File and source
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- 4-21-cv-05148_RECAP_gov.uscourts.waed.97667.68.0.pdf
- Size
- 378,030 bytes
- SHA-256
- 5623027eb6588061f965e8077388c9665692278cc35730284e9479ff0c16833c
- Original
- No public link identified.