Plaintiffs’ Response to Federal Defendants’ Motion to Dismiss — Donovan v. Biden (No. 4:21-cv-5148-TOR)
Summary
The plaintiffs’ response to the federal defendants’ motion to dismiss their first amended complaint, filed February 22, 2022 as ECF No. 71 in David G. Donovan, et al. v. Joseph R. Biden, Case No. 4:21-cv-5148-TOR, in the U.S. District Court for the Eastern District of Washington. The plaintiffs argue that Executive Order 14042 for federal contractors and Executive Order 14043 for federal employees, which imposed COVID-19 vaccine mandates, have been enjoined by other courts, that they have standing through actual injury, and that a Religious Freedom Restoration Act claim needs no exhaustion. The brief also argues that the orders were not authorized by the Federal Property and Administrative Services Act and violate the Tenth Amendment, the APA and equal protection. It is signed by Nathan J. Arnold of Arnold & Jacobowitz PLLC and Simon Peter Serrano of Silent Majority Foundation.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Plaintiffs’ Response to Federal Defendants’ Motion to Dismiss — Donovan v. Biden (No. 4:21-cv-5148-TOR).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/4-21-cv-05148-recap-gov-uscourts-waed-97667-71-0-a92f1d1bc1/
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Case 4:21-cv-05148-TOR ECF No. 71 filed 02/22/22 PageID.1134 Page 1 of 27
Nathan J. Arnold, WSBA NO. 45356
1 Arnold & Jacobowitz PLLC
2 2701 First Avenue, Suite 200
Seattle, WA 98121
3 (206) 799-4221
nathan@CAJlawyers.com
4
Simon Peter Serrano, WSBA No. 54769
5 Silent Majority Foundation
5426 N. Rd. 68, Ste. D, Box 105
6 Pasco, WA 99301
7 (530) 906-9666
pete@silentmajorityfoundation.org
8
9
10 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
11
12 DAVID G. DONOVAN, et al., )
) CASE NO. 4:21-cv-5148-TOR
13 Plaintiffs, )
14 ) PLAINTIFFS’ RESPONSE
v. ) TO FEDERAL
15 ) DEFENDANTS’ MOTION TO
16 JOSEPH R. BIDEN, in his official ) DISMISS PLAINTIFFS’
capacity as President of the United ) FIRST AMENDED
17 States of America, et al., ) COMPLAINT
)
18
Defendants. )
19 )
20
21
22
23
24
25
ARNOLD & JACOBOWITZ PLLC
PLAINTIFFS’ RESPONSE TO FEDERAL 2701 FIRST AVENUE, SUITE 200
DEFENDANTS’ MOTION TO DISMISS - 1 SEATTLE, WA 98121
113 EAST WOODIN AVENUE, SUITE 200
CHELAN, WA 98816 (THIS ADDRESS DOES NOT ACCEPT SERVICE OF PROCESS)
Case 4:21-cv-05148-TOR ECF No. 71 filed 02/22/22 PageID.1135 Page 2 of 27
1 TABLE OF CONTENTS
2 I. INTRODUCTION .................................................................................................. 8
3
II. MOTION TO DISMISS STANDARD ................................................................ 10
4
5 III. ARGUMENT ...................................................................................................... 11
6
A. The Federal Defendants’ Motion under FRCP 12(b)(1) should be Denied
7
8 because the Court has Subject-Matter Jurisdiction. ................................................. 11
9 1. Plaintiffs Have Standing to Sue. ................................................................... 11
10
11 2. Plaintiffs’ Claims are Ripe. ........................................................................... 13
12 B. The Federal Defendants’ Motion under FRCP 12(b)(6) should be Denied
13
Because the EOs are Unauthorized, Ultra Vires, and Unconstitutional. .................. 14
14
15 3. The Federal Property and Administrative Services Act (“FPASA”) does not
16
authorize EO 14202. ............................................................................................. 14
17
18 4. The EOs are unlawfully promulgated due to failure to publish as required by
19 statute. ................................................................................................................... 21
20
5. The Contractor Mandate (EO 14202) violates the Tenth Amendment. ....... 22
21
22 6. The EOs offend separation of powers........................................................... 22
23
7. The EOs are arbitrary and capricious under the APA. ................................. 23
24
25 8. The EOs violate Plaintiffs’ Free Exercise rights under RFRA. .................... 23
ARNOLD & JACOBOWITZ PLLC
PLAINTIFFS’ RESPONSE TO FEDERAL 2701 FIRST AVENUE, SUITE 200
DEFENDANTS’ MOTION TO DISMISS - 2 SEATTLE, WA 98121
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1 9. The EO Offend Equal Protection .................................................................. 25
2 10. Plaintiffs’ Bivens claims are properly pled. .............................................. 25
3
IV. CONCLUSION ................................................................................................... 25
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ARNOLD & JACOBOWITZ PLLC
PLAINTIFFS’ RESPONSE TO FEDERAL 2701 FIRST AVENUE, SUITE 200
DEFENDANTS’ MOTION TO DISMISS - 3 SEATTLE, WA 98121
113 EAST WOODIN AVENUE, SUITE 200
CHELAN, WA 98816 (THIS ADDRESS DOES NOT ACCEPT SERVICE OF PROCESS)
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1 TABLE OF AUTHORITIES
2 Cases
3
Air Force Officer v. Austin, No. 5:22-CV-00009-TES, 2022 WL 468799, at *9 (M.D.
4
5 Ga. Feb. 15, 2022) .................................................................................................... 24
6 Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) ...................................... 15
7
American Federation of Labor v. Kahn, 618 F.2d 784, 793 (D.C. Cir. 1979) ............. 17
8
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)................................................. 10
9
10 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
11 (1971) ........................................................................................................................ 25
12
Brnovich v. Biden, No. CV-21-01568-PHX-MTL (D. Ariz. Feb. 10, 2022) ..... 8, 10, 18
13
14 BST Holdings, L.L.C. v. Occupational Safety & Health Admin., 17 F.4th 604, 617 (5th
15 Cir. 2021) .................................................................................................................. 22
16
Cheema v. Thompson, 67 F.3d 883, 885 (9th Cir. 1995) ............................................. 24
17
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985).......................... 24
18
19 District of Columbia v. Heller, 554 U.S. 570, 578 (2008) ........................................... 16
20
Doe v. San Diego Unified Sch. Dist., 22 F.4th 1099, 1100 (9th Cir. 2022) ................... 9
21
FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021) .............................. 22
22
23 Feds for Medical Freedom et al v. Biden, No. 22-40043, 2022 WL 391820 (5th Cir.
24 Feb. 9, 2022) ......................................................................................................... 8, 10
25
ARNOLD & JACOBOWITZ PLLC
PLAINTIFFS’ RESPONSE TO FEDERAL 2701 FIRST AVENUE, SUITE 200
DEFENDANTS’ MOTION TO DISMISS - 4 SEATTLE, WA 98121
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CHELAN, WA 98816 (THIS ADDRESS DOES NOT ACCEPT SERVICE OF PROCESS)
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1 Feds for Medical Freedom et al v. Biden, S.D. Tex., No. 3:21-cv-00356, 2022 WL
2 188329 (S.D. Tex. Jan. 21, 2022) ................................................................... 8, 13, 19
3
Florida v. Nelson, --F.Supp.3d--, 2021 WL 6108948, at *27 (M.D. Fla. December 22,
4
2021) ............................................................................................................. 14, 15, 17
5
6 Georgia v. Biden, No. 1:21-CV-163, 2021 WL 5779939, at *12 (S.D. Ga. Dec. 7,
7 2021) ............................................................................................................... 8, 10, 18
8
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) .. 12
9
10 Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994, 1001 (8th Cir. 2015) ... 23
11 Hobby Lobby, 573 U.S. 682, 706 (2014) ...................................................................... 23
12
Hodges v. Callaway, 499 F.2d 417, 420 (5th Cir. 1974) .............................................. 12
13
In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 327 (4th Cir. 2004) ................... 16
14
15 Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022) .............................................. 11, 16, 22
16 Kentucky v. Biden, No. 21-cv-55, --F.Supp.3d--, 2021 WL 5587446 (E.D. Ky. Nov.
17
30, 2021) ................................................................................................. 11, 15, 18, 19
18
19 Liberty Mutual v. Friedman, 639 F.2d 164, 170–71 (4th Cir. 1981) ........................... 17
20 Louisiana v. Biden, 543 F. Supp. 3d 388, 408 (W.D. La. 2021) .................................. 23
21
Louisiana v. Biden, No. 21-cv-3867, 2021 WL 5986815, at *7 (W.D. La. Dec. 16,
22
2021) ......................................................................................................................... 21
23
24 Missouri v. Biden, No.4:21-CV-1300 DDN, --F.Supp.3d--, 2021 WL 5564501 (E.D.
25 Mo. Nov. 29, 2021) ................................................................................................... 11
ARNOLD & JACOBOWITZ PLLC
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1 Missouri v. Biden, No.4:21-CV-1300 DDN, --F.Supp.3d--, 2021 WL 5998204 *5
2 (E.D. Mo. Dec. 22, 2021) ......................................................................................... 19
3
Muhammad v. Secretary of Army, 770 F.2d 1494, 1495 (9th Cir. 1985) ..................... 12
4
Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d
5
6 Cir. 2018) .................................................................................................................. 21
7 Nat'l Fed'n Indep. Bus. v. OSHA, 595 U.S. ––– (2022) ............................................... 20
8
Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir.
9
10 2012) ......................................................................................................................... 12
11 Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) .............................. 9
12
Sackett v. E.P.A., 566 U.S. 120, 130 (2012) ................................................................. 23
13
Sambrano v. United Airlines, Inc., No. 21-11159, 2022 WL 486610, at *5 (5th Cir.
14
15 Feb. 17, 2022) ..................................................................................................... 11, 13
16 Sherbert v. Verner, 374 U.S. 398, 404 (1963) .............................................................. 24
17
Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) ......................................................... 8
18
19 Tandon v. Newsom, 992 F.3d 916, 939 (9th Cir. 2021) ................................................. 8
20 Thomas v. Rev. Bd. Of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981) ...................... 24
21
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)............. 23
22
U.S. Navy SEALs 1-26 v. Biden, 4:21-CV-01236-O, 2022 WL 34443, at *10 (N.D.
23
24 Tex. Jan. 3, 2022)............................................................................................ 9, 12, 24
25 United States ex rel. Solis v. Millennium Pharm., Inc., 885 F.3d 623, 625 (9th Cir.
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1 2018) ......................................................................................................................... 10
2 United States v. Lopez, 514 U.S. 549, 584 (1995) ........................................................ 22
3
Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) ....................................... 15
4
Vorcheimer v. Phila. Owners Assoc., 903 F.3d 100, 105 (3d Cir. 2018) ..................... 16
5
6 Walden v. Cntrs. for Disease Control & Prevention, 669 F.3d 1277, 1291 (11th Cir.
7 2012) ......................................................................................................................... 12
8
Whitman v. American Trucking Associations, 531 U.S.457, 472 (2001) ..................... 22
9
10 Statutes
11 40 U.S.C. § 121 ....................................................................................................... 15, 16
12
40 U.S.C. § 101 ................................................................................................. 14, 15, 16
13
14 41 U.S.C. § 1707 ........................................................................................................... 21
15 42 U.S.C. § 1983 ........................................................................................................... 25
16
5 U.S.C. § 702 ............................................................................................................... 22
17
5 U.S.C. § 706 ............................................................................................................... 22
18
19 Federal Property and Administrative Services Act .............................................. passim
20
Religious Freedom Restoration Act.............................................................. 9, 10, 12, 23
21
22 Regulations
23 Exectuive Order 14042 .......................................................................................... passim
24
Executive Order 14043 ................................................................................... 7, 8, 14, 20
25
ARNOLD & JACOBOWITZ PLLC
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1
I. INTRODUCTION
2
The Biden Administration’s initial attempts to address the COVID-19 pandemic
3
4 focused on measures short of mandating vaccines, and the Administration expressly
5 disclaimed any intention to impose a vaccine mandate.1 Since that time, President Biden
6
attempted to impose vaccine mandates through two Executive Orders (“EO”), EO
7
8 14042 for federal contractors and EO 14043 for federal employees. These EOs, and the
9 particular arguments raised by Defendants here, have met with a hostile reception in the
10
federal courts.
11
EO 14042 is already preliminary enjoined on a nationwide basis. Georgia v.
12
13 Biden, No. 1:21-CV-163, 2021 WL 5779939, at *12 (S.D. Ga. Dec. 7, 2021) and is
14 already permanently enjoined within the 9th Circuit. Brnovich v. Biden, No. CV-21-
15
01568-PHX-MTL (D. Ariz. Feb. 10, 2022). EO 14043 is also preliminarily enjoined
16
17 nationwide, in a decision, Feds for Medical Freedom et al v. Biden, S.D. Tex., No. 3:21-
18 cv-00356, 2022 WL 188329 (S.D. Tex. Jan. 21, 2022), which the Fifth Circuit has so
19
far declined to stay. Feds for Medical Freedom et al v. Biden, No. 22-40043, 2022 WL
20
391820 (5th Cir. Feb. 9, 2022).
21
22
23 1
See, Press Briefing by Press Secretary Jen Psaki, July 23, 2021, https://bit.ly/3pWnJVr
24
(mandating vaccines is “not the role of the federal government”)
25
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1 While courts have denied preliminary injunctions as to more limited vaccine
2 mandates imposed by local governments, even those measures as currently instituted
3
seem unlikely to survive Supreme Court review. As dissenting judges recently opined
4
in one such case:
5
6 Here we go again. When it comes to dealing with the COVID-19
crisis, the ‘Supreme Court’s instructions have been clear, repeated,
7 and insistent: no COVID-19 restriction can disfavor religious
8 practice.’ Tandon v. Newsom, 992 F.3d 916, 939 (9th Cir. 2021)
(Bumatay, J., dissenting in part and concurring in part). The
9 Supreme Court has again and again admonished this court for failing
10 to follow its guidance. Indeed, almost a year ago, the Court
expressed frustration that, for the ‘fifth time,’ it had to ‘summarily
11 reject[] the Ninth Circuit’s analysis of California’s COVID
restrictions on religious exercise.’ Tandon v. Newsom, 141 S. Ct.
12
1294, 1297 (2021) (per curiam) (emphasis added). With this case,
13 our court is gunning for a sixth..2
14 Doe v. San Diego Unified Sch. Dist., 22 F.4th 1099, 1100 (9th Cir. 2022) (Bumatay, J.
15
dissenting).
16
17 The better approach may be seen in yet another recent case enjoining a similar
18 federal vaccine mandate, which likewise offended Religious Freedom Restoration Act
19
(“RFRA”) by failing to provide for religious accommodations:
20
Although ‘[s]temming the spread of COVID-19 is unquestionably a
21
compelling interest,’ its limits are finite. Roman Cath. Diocese of
22 Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Courts must ‘look beyond
23 2
Counsel note that our Notice of Supplemental Authority, ECF No. 56, included a prior
24
Order Denying Appellants’ Motion for Injunctive Relief in Doe v. San Diego Unified.
25
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PLAINTIFFS’ RESPONSE TO FEDERAL 2701 FIRST AVENUE, SUITE 200
DEFENDANTS’ MOTION TO DISMISS - 9 SEATTLE, WA 98121
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1 broadly formulated interests,’ and instead consider the ‘asserted
harm of granting specific exemptions to particular religious
2 claimants.’ Hobby Lobby, 573 U.S. at 726–27 (cleaned up) (internal
quotations omitted). In other words, Defendants must provide more
3
than a broadly formulated interest in ‘national security.’ They must
4 articulate a compelling interest in vaccination.
5 U.S. Navy SEALs 1-26 v. Biden, 4:21-CV-01236-O, 2022 WL 34443, at *10 (N.D. Tex.
6
Jan. 3, 2022).
7
8 Like the Navy Seals in that case, Plaintiffs here have safely carried out their jobs
9 during the pandemic. They simply ask to be allowed to continue to work without threat
10
of adverse employment action for exercising their rights under RFRA to object on
11
religious grounds to an injection. Cleary, Plaintiffs have actual injury and hence
12
13 standing, and no “exhaustion” is required for a RFRA claim, so this Court has subject
14 matter jurisdiction. And as many courts have already held, these EOs were unauthorized
15
by statute, improperly issued, and unconstitutional, so Plaintiffs clearly state a claim for
16
17 relief. Plaintiffs therefore respectfully request this Court to deny the Federal
18 Defendants’ motion to dismiss.
19
Plaintiffs understand, however, that this Court has not exercised and will not
20
exercise jurisdiction over their state law claims, which will therefore be brought in State
21
22 Court. Plaintiffs also agree with the Federal Defendants that Plaintiffs’ claims under the
23 ADA lie only against the Contractor Defendants.
24
II. MOTION TO DISMISS STANDARD
25
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1 Federal Defendants moved under FRCP 12(b)(1) and FRCP 12(b)(6). To defeat
2 a Rule 12(b)(6) motion, Plaintiff need only plead a claim which is “plausible on its
3
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). On a Rule 12(b)(1)
4
motion, Plaintiffs bear the burden to establish subject matter jurisdiction by a
5
6 preponderance of the evidence. United States ex rel. Solis v. Millennium Pharm., Inc.,
7 885 F.3d 623, 625 (9th Cir. 2018). Both of these standards are much lower than
8
likelihood of success standard required for the “extraordinary and drastic” remedy of
9
10 injunction which has already been granted by many other courts, on the same legal
11 theory, regarding these same mandates. See, e.g., Brnovich, supra; Feds for Medical
12
Freedom, supra; Georgia v. Biden, supra; Kentucky v. Biden, 23 F.4th 585 (6th Cir.
13
2022) affirming Kentucky v. Biden, No. 21-cv-55, --F.Supp.3d--, 2021 WL 5587446
14
15 (E.D. Ky. Nov. 30, 2021); Missouri v. Biden, No.4:21-CV-1300 DDN, --F.Supp.3d--,
16 2021 WL 5564501 (E.D. Mo. Nov. 29, 2021).
17
III. ARGUMENT
18
19 A. The Federal Defendants’ Motion under FRCP 12(b)(1) should be Denied
20 because the Court has Subject-Matter Jurisdiction.
21
1. Plaintiffs Have Standing to Sue.
22
The Fifth Circuit, in a vaccine mandate case under Title VII, expressly held that
23
24 “plaintiffs in this case need not have fully exhausted administrative remedies before
25 seeking a preliminary injunction in federal court.” Sambrano v. United Airlines, Inc.,
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1 No. 21-11159, 2022 WL 486610, at *5 (5th Cir. Feb. 17, 2022). As in that case,
2 Plaintiffs here are seeking “to avoid being coerce[d] into getting a vaccine that violates
3
their sincerely held religious beliefs and thus avoid any adverse employment action.”
4
Id. at *7 (emphasis in original). As in that case, Plaintiffs have begun the EEOC
5
6 complaint process and are entitled to injunctive relief to preserve the status quo to
7 prevent adverse employment action while that process is pending. Id. Like the United
8
Airlines plaintiffs, Plaintiffs here are under threat of being placed on unpaid leave,
9
10 terminated, or otherwise adversely impacted in their jobs. Id. Two Plaintiffs have
11 already been placed on Administrative Leave without Pay (First Amended Complaint
12
¶¶ 77, 79, 313) one was reassigned (Id. ¶ 127). Even those Plaintiffs who received some
13
accommodation are under threat of adverse action and at least have had their free
14
15 exercise and privacy rights infringed upon.
16 Moreover, the Ninth Circuit has declined “to read an exhaustion requirement into
17
RFRA” because “the statute contains no such condition… and the Supreme Court has
18
19 not imposed one.” Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d
20 829, 838 (9th Cir. 2012). Indeed, “the Supreme Court has reviewed a RFRA-based
21
challenge” without requiring plaintiffs first seek a religious exemption from the statute
22
at issue. Id. (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
23
24 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006)). In addition, “Federal Contractors
25 are covered by RFRA when they are hired as or by an “instrumentality” of the federal
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1 government. See id. § 2000bb–1(a) (imposing the obligations of RFRA upon the
2 ‘Government’); id. § 2000bb–2(1) (defining ‘government’ to include ‘a branch,
3
department, agency, instrumentality, and official (or other person acting under color of
4
law) of the United States, or of a covered entity’).” Walden v. Cntrs. for Disease Control
5
6 & Prevention, 669 F.3d 1277, 1291 (11th Cir. 2012).
7 In a similar vaccine-mandate case in a military setting, the district court for the
8
Eastern District of Texas found that “exhaustion is futile and will not provide complete
9
10 relief, and therefore the case is justiciable.” U.S. Navy Seals 1-26, 2022 WL 34443, at
11 *7, *12); and see Muhammad v. Secretary of Army, 770 F.2d 1494, 1495 (9th Cir. 1985)
12
(using same test); Hodges v. Callaway, 499 F.2d 417, 420 (5th Cir. 1974).
13
2. Plaintiffs’ Claims are Ripe.
14
15 Many Plaintiffs have already received letters from their employer agencies
16 warning of imminent suspension or termination. First Amended Complaint ¶ 182 (e.g.,
17
Kerry Kost was initially informed he would be terminated if unvaccinated before
18
19 December 8, 2022. He was then granted a temporary accommodation through February
20 8, 2022, which was extended through March 18, 2022). Defendants also claim that those
21
Plaintiffs have not submitted an exemption suffer a self-inflicted wound only. That is
22
the exact opposite of what was held in Feds for Med. Freedom v. Biden, No. 3:21-CV-
23
24 356, 2022 WL 188329, at *3 (S.D. Tex. Jan. 21, 2022).
25 The Government concedes that some Plaintiffs have suffered adverse
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1 employment action; it has not identified any Plaintiff has not had their right to free
2 exercise infringed upon. As the Sambrano Court held, threats which coerce the
3
Plaintiffs to relinquish their religious rights require immediate judicial intervention.
4
2022 WL 486610, at *8–9 (5th Cir. Feb. 17, 2022).
5
6 B. The Federal Defendants’ Motion under FRCP 12(b)(6) should be Denied
7 Because the EOs are Unauthorized, Ultra Vires, and Unconstitutional.
8
3. The Federal Property and Administrative Services Act (“FPASA”) does
9
10 not authorize EO 14202.
11 “As your President, I’m announcing tonight a new plan to require more
12
Americans to be vaccinated, to combat those blocking public health.”3 To achieve his
13
goal of requiring vaccinations and combatting “those who block public health,” on
14
15 September 9, 2021, President Biden promulgated Executive Order 14043, Executive
16 Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,
17
and Executive Order 14042, Executive Order on Ensuring Adequate COVID Safety
18
19 Protocols for Federal Contractors, purportedly under the auspices of the Federal
20 Property and Administrative Services Act (“FPASA”), 40 U.S.C. § 101 et seq., a statute
21
3
22 Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021),
23
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-
24
by-president-biden-on-fighting-the-covid-19-pandemic-3/.
25
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1 enacted in 1949 to streamline the management of federal property.
2 The EOs are manifestly not about managing federal property. They mandate the
3
entire federal and civilian workforce to be vaccinated against COVID-19 or receive an
4
exemption and accommodation from the vaccine. The limited scope of the FPASA has
5
6 been a key issue in litigation against these EOs. As Judge Merryday said in Florida v.
7 Nelson,
8
Because the record in this action presents only a threadbare and
9 conclusory rationalization that is incommensurate with the
10 boundless expansiveness of the executive order’s application, with
the invasiveness of the executive order’s requirement, and with the
11 intrusion of the executive order into a state prerogative with which
even Congress likely cannot interfere, I join Judges Van Tatenhove,
12
Baker, and Noce in Kentucky, Georgia, and Missouri in concluding
13 that Executive Order 14042 almost certainly exceeds the President’s
authority under FPASA.
14
15 Florida v. Nelson, --F.Supp.3d--, 2021 WL 6108948, at *27 (M.D. Fla. December 22,
16 2021) (granting Motion for Preliminary Injunction). While the President may enjoy
17
some flexibility under FPASA to avoid disruption in procurement, the absence of any
18
19 basis to think that the EOs will improve the federal or federal contract workforce or
20 its contracting processes discredits the EOs. As Judge Merryday concluded, such a
21
complete lack of support “suggests a ruse, a mere contrivance, superficially attempting
22
to justify a sweeping, invasive, and unprecedented public health requirement imposed
23
24 unilaterally by President Biden” through EO 14042. Id. at 28.
25 And the United States Supreme Court has repeatedly held that Congress is
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1 expected to “speak clearly” when authorizing executive action of “vast economic and
2 political significance.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021)
3
(quotations omitted). Basic separation-of-powers concerns forbid the President to
4
“bring about an enormous and transformative expansion in [his] regulatory authority
5
6 without clear congressional authorization.” Util. Air Regulatory Grp. v. EPA, 573 U.S.
7 302, 324 (2014). But that is just what happened here.
8
The Federal Defendants’ reliance upon 40 U.S.C. §§ 101(1) and 121 is misplaced.
9
10 Section 101 merely states the FPASA’s purpose: to “provide . . . an economical and
11 efficient system” for “(1) Procuring and supplying property and nonpersonal services,
12
and performing related functions…” 40 U.S.C. § 101 (emphasis added). “[A]part from
13
[a] clarifying function, a prefatory clause does not limit or expand the scope of the
14
15 operative clause.” District of Columbia v. Heller, 554 U.S. 570, 578 (2008); accord
16 Kentucky, 23 F.4th at 604. The general statement of legislative intent in Section 101, if
17
it authorizes anything, does not authorize regulation to procure contractors with an
18
19 economical and efficient workforce—at most, it authorizes regulation to create an
20 efficient and economical “scheme or method” for procuring the contractors. Kentucky
21
v. Biden, 23 F.4th 585, 604 (2022) (quoting Webster’s New International Dictionary
22
2562 (2d ed. 1959)). The word “system” in this statute clarifies that FPASA
23
24 authorizes regulation of the operations of the government in contracting, rather than
25 regulation of the employees of government contractors. Id.
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1 The government finds no better support under 40 U.S.C. § 121, which merely
2 authorizes the President to “prescribe policies and directives that the President considers
3
necessary to carry out” FPASA. 40 U.S.C. § 121(a) (emphasis added). “Necessary”
4
is a “word of limitation,” generally synonymous with “required,” “indispensable,” and
5
6 “essential.” Vorcheimer v. Phila. Owners Assoc., 903 F.3d 100, 105 (3d Cir. 2018)
7 (quotations omitted); accord In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 327
8
(4th Cir. 2004). Rather than explaining why a vaccine mandate is required,
9
10 indispensable, or essential to carrying out FPASA, the government offers only a
11 “threadbare and conclusory rationalization,” Nelson, 2021 WL 6108948 at *11–12,
12
claiming that “The illness and mortality caused by COVID-19 have led to serious
13
disruptions for organizations, employees, and contractors across the United States, and
14
15 the federal government is no exception.” Federal Defendants’ Motion to Dismiss at 1.
16 Even if FPASA authorized the President to impose requirements on the internal
17
operations of federal contractor employees in the name of economy and efficiency in
18
19 procurement of contracts, which it does not, FPASA is not a “blank check for the
20 president to fill in at his will,” American Federation of Labor v. Kahn, 618 F.2d 784,
21
793 (D.C. Cir. 1979). There must be a “demonstrable relationship” between FPASA’s
22
purpose of ensuring efficiency in the contracting process and the mandate. Liberty
23
24 Mutual v. Friedman, 639 F.2d 164, 170–71 (4th Cir. 1981). Neither EO 14202 nor any
25 subsequent agency actions “identify any instance in which absenteeism attributable to
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1 COVID-19 among contractor employees resulted in delayed procurement or increased
2 costs.” Nelson, 2021 WL 6108948, at *12. Not surprisingly, two years in, contractors
3
have learned to work around the pandemic. A general desire to prevent “absenteeism”
4
in federal contractors’ workforces is not sufficiently related to the government’s
5
6 procurement interests to justify a “sweeping, invasive, and unprecedent public health
7 requirement imposed unilaterally by President Biden.” Nelson, 2021 WL 6108948, at
8
*12.
9
10 For these reasons, a sister District Court in this circuit permanently enjoined EO
11 14042, expressly rejecting the same FPASA-authorization theory proffered by the
12
Federal Defendants here. As Judge Liburdi explained:
13
“[i]t is hard to see what measures [Defendants’] interpretation would
14 place outside” the President's reach. As long as the federal
15 government could articulate some connection—no matter how
tenuous—between the enacted policy and the broad goals of
16 achieving economy and efficiency in federal procurement, the
17 policy would be consistent with the statute. If, for example, the
President determined that obesity, diabetes, and other health issues
18 were linked to the consumption of sugary drinks and fast food, and
19 that such health issues led to absenteeism and a lack of productivity
in the workplace, he could, on Defendants’ reading, issue an
20 executive order requiring all federal contractor employees to refrain
from consuming soda or eating fast food. But in reality, the
21
President's authority under the Act is not so broad.
22
Brnovich v. Biden, CV-21-01568-PHX-MTL, 2022 WL 252396, at *17 (D. Ariz. Jan.
23
24 27, 2022). Defendant President Biden has not appealed that decision. Similarly, in
25 Kentucky v. Biden, --- F.4th ----, 2022 WL 43178, *13 (6th Cir. Jan. 5, 2022), the Sixth
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1 Circuit denied the federal government’s motion for a stay pending appeal of the
2 preliminary injunction of the Contractor Mandate, finding that the Federal Defendants
3
were unlikely to succeed on the merits because the Procurement Act does not confer
4
authority on the President to “impos[e] ... a medical mandate upon the federal-contractor
5
6 workforce.” In so ruling, the Sixth Circuit joined the Eleventh Circuit (Georgia v. Biden,
7 21-14269) in maintaining a District Court’s preliminary nationwide injunction on the
8
mandate, also founded on the conclusion that the Procurement Act does not authorize
9
10 the President “to direct the type of actions by agencies that are contained in EO 14042.”
11 Id. at 19. In The Contractor Mandate goes “far beyond addressing administrative and
12
management issues in order to promote efficiency and economy in procurement and
13
contracting, and instead, in application, works as a regulation of public health.” Id. at
14
15 20. “EO 14042’s directives and resulting impact radiate too far beyond the purposes of
16 the Procurement Act and the authority it grants to the President.” Id. at 23.
17
In Missouri v. Biden, No.4:21-CV-1300 DDN, --F.Supp.3d--, 2021 WL 5998204
18
19 *5 (E.D. Mo. Dec. 22, 2021) the District Court ruled that Plaintiffs were likely to
20 succeed on their Procurement Act claims because, inter alia, “if the statement in EO
21
14,042 establishes a sufficient nexus, then the President would be able to mandate
22
virtually any public health measure that would result in a healthier contractor
23
24 workforce…. such an interpretation of the President’s powers under the [Procurement
25 Act] is not consistent with the structure and purposes of the statute.” On the same
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1 reasoning, EO 14202 was enjoined: “it strains credulity that Congress intended the
2 FPASA, a procurement statute, to be the basis for promulgating a public health measure
3
such as mandatory vaccination. If a vaccination mandate has a close enough nexus to
4
economy and efficiency in federal procurement, then the statute could be used to enact
5
6 virtually any measure at the president's whim under the guise of economy and
7 efficiency.” Kentucky v. Biden, 2021 WL 5587446, at *6–7.
8
And, in Feds for Medical Freedom et al v. Biden, S.D. Tex., No. 3:21-cv-00356,
9
10 Judge Brown specifically ordered the government is “enjoined from implementing or
11 enforcing Executive Order 14043 until this case is resolved on the merits.” In that case,
12
the Court found a likelihood of success that vaccination is not workplace conduct,
13
relying upon the recent Supreme Court decision Nat'l Fed'n Indep. Bus. v. OSHA, 595
14
15 U.S. ––––, 142 S.Ct. 661, ––– L.Ed.2d –––– (2022). Feds at *5. ”[T]he Supreme Court
16 has expressly held that a COVID-19 vaccine mandate is not an employment regulation.
17
And that means the President was without statutory authority to issue the federal-worker
18
19 mandate. Feds at *6. That Court also rejected the Federal Defendants’ bare assertion
20 that the President can so regulate under Art. II of the Constitution. Id.
21
The Federal Defendants are of course aware of this authority; in addition, seeking
22
to preserve party and judicial resources, Plaintiffs have brought these cases to the
23
24 attention of the Contractor Defendants and offered, on multiple occasions, to stipulate
25 to a stay of these proceedings while those cases are on appeal if the Contractor
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1 Defendants will agree to not take adverse employment action against Plaintiffs
2 meanwhile. The Contractor Defendants have refused. Their refusal further demonstrates
3
that Plaintiffs have standing, in that they are still threatened with imminent adverse
4
employment action despite the nation-wide injunctions.
5
6 4. The EOs are unlawfully promulgated due to failure to publish as
7 required by statute.
8
When the President issued the EOs, he failed to ensure that proper notice and
9
10 comment channels were used and violated the sixty-day publication requirement for
11 procurement polices under 41 U.S.C. § 1707(a)(1). When a “procurement policy,
12
regulation, procedure, or form” relates to the “expenditure of appropriated funds” and
13
either has “a significant effect beyond the internal operating procedures of” the issuing
14
15 agency or “a significant cost or administrative impact on contractors or offerors,” it
16 must go through the sixty-day notice and comment period. 41 U.S.C. § 1707(a)–(b).
17
Nor does the “urgent and compelling circumstances” exception under § 1707(d) apply.
18
19 The government first tried to publish the EOs on September 28, 2021 but failed to
20 complete notice and comment expeditiously. See 86 Fed. Reg. at 53961. The
21
government then republished on November 16, 202, restarting the sixty-day notice and
22
comment period. 86 Fed. Reg, 64418-25. Delay caused by the government’s own
23
24 mistakes cannot create the circumstances justifying good cause. See Nat. Res. Def.
25 Council v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018).
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1 5. The Contractor Mandate (EO 14202) violates the Tenth Amendment.
2 As held in Louisiana v. Biden, No. 21-cv-3867, 2021 WL 5986815, at *7 (W.D.
3
La. Dec. 16, 2021), there is a “palpable conflict” between the Contractor Mandate and
4
the Tenth Amendment. The Tenth Amendment reserves to the States powers not
5
6 delegated to the United States by the Constitution. Congress cannot invoke the
7 Commerce Clause to compel vaccination because “[a] person’s choice to remain
8
unvaccinated and forgo regular testing is noneconomic inactivity. . .. The Commerce
9
10 Clause power may be expansive, but it does not grant Congress the power to regulate
11 noneconomic inactivity traditionally with the States’ police power.” BST Holdings,
12
L.L.C. v. Occupational Safety & Health Admin., 17 F.4th 604, 617 (5th Cir. 2021);
13
United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring) (“[W]e
14
15 always have rejected readings of the Commerce Clause . . . that would permit Congress
16 to exercise a police power.”) Because vaccination requirements are matters traditionally
17
reserved to the States, President Biden’s EOs violate the Tenth Amendment.
18
19 6. The EOs offend separation of powers.
20 Were FPASA read as broadly as the Federal Defendants urge, it would contain
21
no limiting principle and thus would violate the nondelegation doctrine. When Congress
22
vests decision-making authority in an agency, “Congress must ‘lay down by legislative
23
24 act an intelligible principle to which the person or body authorized to [act] is directed
25 to conform.’” Whitman v. American Trucking Associations, 531 U.S.457, 472 (2001).
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1 7. The EOs are arbitrary and capricious under the APA.
2 The Sixth Circuit Court of Appeals held that EO 14202 gave rise to claims under
3
5 U.S.C. § 702. Kentucky v. Biden, --- F.4th ----, 2022 WL 43178 *11 (6th Cir. Jan. 5,
4
5 2022), (denying motion for a stay of preliminary injunction of EO 14202). A court must
6 “hold unlawful and set aside agency action” that is “arbitrary [or] capricious.” 5 U.S.C.
7
§ 706(2)(A). This standard “requires that agency action be reasonable and reasonably
8
explained.” FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021); and see
9
10 Sackett v. E.P.A., 566 U.S. 120, 130 (2012) (“The APA’s presumption of judicial review
11 is a repudiation of the principle that efficiency of regulation conquers all.”). The EOs
12
are final agency action subject to APA review, because (1) they “mark the
13
14 consummation of the agency’s decision-making process” and (2) have “legal
15 consequences” and determine “rights and obligations.” Louisiana v. Biden, 543 F. Supp.
16
3d 388, 408 (W.D. La. 2021) (citing U.S. Army Corps of Engineers v. Hawkes Co., 136
17
S. Ct. 1807, 1813 (2016)). Plaintiffs lack any adequate alternative remedy to challenge
18
19 this final agency action because alternatives to judicial review would impose
20
“prohibitive costs, risk, and delay.” Hawkes Co. v. U.S. Army Corps of Engineers, 782
21
F.3d 994, 1001 (8th Cir. 2015).
22
23 8. The EOs violate Plaintiffs’ Free Exercise rights under RFRA.
24
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., “was
25
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1 designed to provide very broad protection for religious liberty.” Hobby Lobby, 573 U.S.
2 682, 706 (2014). “Government shall not substantially burden a person’s exercise of
3
religion even [by] a rule of general applicability,” unless the Government “demonstrates
4
that application of the burden to the person (1) is in furtherance of a compelling
5
6 governmental interest; and (2) is the least restrictive means of furthering that compelling
7 governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). Because RFRA “provides greater
8
religious protections than the First Amendment, any claim under this Act also favors
9
10 judicial review.” Navy SEALs 1–26, --F. Supp. 3d---, 2022 WL 34443, at *7. The burden
11 of proof is on the Government. Cheema v. Thompson, 67 F.3d 883, 885 (9th Cir. 1995).
12
The Executive Orders cannot survive this statutory strict scrutiny. “And, how
13
could they? Very few scenarios paint a bleaker picture than giving up your livelihood
14
15 in order to follow your religious beliefs.” Air Force Officer v. Austin, No. 5:22-CV-
16 00009-TES, 2022 WL 468799, at *9 (M.D. Ga. Feb. 15, 2022). The government
17
burdens religion when it “put[s] substantial pressure on an adherent to modify his
18
19 behavior and to violate his beliefs.” Thomas v. Rev. Bd. Of Ind. Emp’t Sec. Div., 450
20 U.S. 707, 718 (1981); Sherbert v. Verner, 374 U.S. 398, 404 (1963). Under the motion
21
to dismiss standard, the Federal Government cannot meet its burden, where natural
22
immunity has been disregarded and, given the inefficacy of the vaccines against current
23
24 variants, masking and testing may be at least as effective and less restrictive than a
25 vaccine that cannot be taken off at the end of the workday like a mask.
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1 9. The EO Offend Equal Protection
2 The Equal Protection Clause prohibits the government from drawing “arbitrary
3
distinctions between individuals based solely on differences that are irrelevant to a
4
legitimate governmental objection.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473
5
6 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Here, arbitrary lines have been
7 drawn between those with natural immunity who refuse vaccination on religious
8
grounds and those who are vaccinated where, based on the latest science, those with
9
10 natural immunity may be better protected than those who have only received a vaccine.
11 Strict scrutiny applies when those lines are drawn against a suspect class or when a
12
fundamental right is at stake.
13
10. Plaintiffs’ Bivens claims are properly pled.
14
15 Plaintiffs agree that 42 U.S.C. § 1983 does not allow claims against the
16 Government itself, but Plaintiffs properly pled claims against the Federal Defendants in
17
their personal capacities for their official acts. Bivens v. Six Unknown Named Agents of
18
19 Federal Bureau of Narcotics, 403 U.S. 388 (1971). The President has absolute
20 immunity from Bivens liability, but Mrs. Granholm and Mr. Vance do not.
21
IV. CONCLUSION
22
For the reasons set forth above, Plaintiffs respectfully request that this Court
23
24 DENY Federal Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint.
25
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1 DATED this 22nd day of February 2022.
2 ARNOLD & JACOBOWITZ PLLC
3
/s/ Nathan J. Arnold
4 Nathan J. Arnold, WSBA No. 45356
5 2701 First Ave., Ste. 200
Seattle, WA 98121
6 (206) 799-4221
7 Nathan@CAJLawyers.com
8 SILENT MAJORITY FOUNDATION
9
/s/ Simon P. Serrano
10 Simon Peter Serrano, WSBA No. 54769
Silent Majority Foundation
11
5426 N. Rd. 68, Ste. D, Box 105
12 Pasco, WA 99301
(530)906-9666
13
pete@silentmajorityfoundation.org
14
Counsel for Plaintiffs
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on February 22, 2022, I electronically filed the foregoing
with the Clerk of the Court for the United States District Court District of Washington
3
by using the CM/ECF system. Participants in the case who are registered CM/ECF users
4 will be served by the CM/ECF system.
5 I further certify that some of the participants in the case are not CM/ECF users. I
6 have I served a copy of the foregoing upon all Defendants via legal messenger.
7
DATED this 22nd day of February 2022.
8
9 /s/ Nathan J. Arnold
Nathan J. Arnold, WSBA No. 45356
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