Defendants’ Motion To: DAVID G. DONOVAN, et al., v. JOSEPH R. BIDEN, in his official
Summary
Federal defendants' motion to dismiss the Second Amended Complaint in David G. Donovan, et al. v. Joseph R. Biden, No. 4:21-CV-05148-TOR, filed March 18, 2022 as ECF No. 79 in the U.S. District Court for the Eastern District of Washington. Defendants Joseph R. Biden, Jennifer Granholm and Brian Vance ask the court to dismiss with prejudice a challenge by employees associated with the Department of Energy Hanford Site to the COVID-19 vaccination mandates in two Executive Orders. The motion argues that no claim is stated against Secretary Granholm or Brian Vance, that most of the 314 individual plaintiffs lack standing, and that the Procurement Act, constitutional, APA, equal protection, due process and free exercise counts fail. It also asks the court to deny leave to amend and to strike the jury demand. The 32-page motion is signed by an Assistant United States Attorney.
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“Defendants’ Motion To: DAVID G. DONOVAN, et al., v. JOSEPH R. BIDEN, in his official.”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/4-21-cv-05148-recap-gov-uscourts-waed-97667-79-0-6e6cc503a0/
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Case 4:21-cv-05148-TOR ECF No. 79 filed 03/18/22 PageID.1318 Page 1 of 32
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, et al., D
No. 4:21-CV-05148-TOR
12 Plaintiffs,
v.
13 DEFENDANTS’ MOTION TO
JOSEPH R. BIDEN, in his official DISMISS SECOND AMENDED
14 COMPLAINT
capacity as President of the United States
15 of America, JENNIFER 05/09/2022
16 GRANHOLM, in her official capacity as Without Oral Argument
Secretary of the UNITED STATES
17 DEPARTMENT OF ENERGY, BRIAN
VANCE in his official capacity as
18 Manager of the UNITED STATES
19 DEPARTMENT OF ENERGY Hanford
Site,
20
Defendants.
21
22
23
24
25
26
27
28
29 DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - i
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Case 4:21-cv-05148-TOR ECF No. 79 filed 03/18/22 PageID.1319 Page 2 of 32
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 fail to state any claim against Secretary Granholm or Brian Vance. ..
......................................................................................................................... 4
7
8 B. The overwhelming majority of Plaintiffs lack standing to sue. ....................... 5
9
i. Plaintiffs who have not applied for any exception face self-inflicted
10 injuries that cannot support standing. ....................................................... 7
11
ii. Plaintiffs who have already been vaccinated or who have been provided
12 accommodations do not face an injury that gives them standing. ............. 8
13 iii. Plaintiffs who have not alleged their exception status have not met their
14 burden of establishing jurisdiction............................................................. 9
15 iv. Plaintiffs who have not yet had their accommodation requests determined
16 raise unripe claims. .................................................................................. 11
17
C. Plaintiffs do not state a viable cause of action for violation of the
18 Procurement Act and their arguments fail on the merits (Count 4) ............... 13
19 D. The President is statutorily not subject to the Office of Federal Procurement
20 Policy Act (Count 5). ...................................................................................... 20
21 E. Plaintiffs’ constitutional structural arguments (Counts 6–9, 13) are not
22 standalone causes of action and are insufficiently pled.................................. 21
23 F. Plaintiffs’ APA claims (Counts 10–12) fail for lack of a proper defendant. . 22
24
G. Plaintiffs fail to adequately plead their equal protection challenge (Count 2). ..
25 ....................................................................................................................... 23
26 H. The vaccination mandates do not violate Plaintiffs’ substantive due process
27 rights (Count 3). .............................................................................................. 24
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29 DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - ii
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Case 4:21-cv-05148-TOR ECF No. 79 filed 03/18/22 PageID.1320 Page 3 of 32
I. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1). ... 25
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2 J. Plaintiffs Should Not Be Granted Leave to Amend. ...................................... 26
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IV. Conclusion........................................................................................................... 28
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29 DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - iii
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Defendants Joseph R. Biden, Jennifer Granholm, and Brian Vance, through
1
2 counsel, respectfully move to dismiss Plaintiffs’ Second Amended Complaint (ECF
3
No. 74) with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
4
5 I. Introduction and Procedural History
6 The ongoing COVID-19 pandemic poses a serious threat to public health and
7
the economy. The illness and mortality caused by COVID-19 have led to serious
8
9 disruptions for organizations, employees, and contractors across the United States, and
10 the federal government is no exception. Accordingly, on September 9, 2021, the
11
President issued two Executive Orders aimed at preventing disruptions in the
12
13 provision of government services by federal employees and contractors by combatting
14 the spread of COVID-19. See Requiring Coronavirus Disease 2019 Vaccination for
15
Federal Employees, Exec. Order No. 14043, 86 Fed. Reg. 50,989, (Sept. 9, 2021)
16
17 (“Employee Order”); Ensuring Adequate COVID Safety Protocols for Federal
18 Contractors, Exec. Order No. 14,042, 86 Fed. Reg. 50,985 (Sept. 9, 2021)
19
(“Contractor Order”).1
20
21
22 1
Both Executive Orders are presently preliminarily enjoined on a nationwide basis.
23
Feds for Medical Freedom v. Biden, --- F. Supp. 3d ---, 2022 WL 188329 (S.D. Tex.
24
25 Jan. 21, 2022), appeal docketed, No. 22-40043 (5th Cir. Jan. 26, 2022) (Employee
26 Order); Georgia v. Biden, --- F. Supp. 3d ---, 2021 WL 5779939 (S.D. Ga. Dec. 7,
27
2021), appeal docketed, No. 21-14269 (11th Cir. Dec. 10, 2021) (Contractor Order).
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 1
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Plaintiffs, a group of federal employees and federal contractor employees
1
2 associated with the Department of Energy (“DOE”) Hanford Site, filed an initial
3
Complaint seeking to challenge these vaccination mandates. ECF No. 1. Plaintiffs
4
sought preliminary injunctive relief, which the Court denied. ECF No. 58.
5
6 Defendants then moved to dismiss the initial Complaint. ECF No. 59. Plaintiffs
7
responded by filing their First Amended Complaint as a matter of course. ECF No.
8
9 60. Defendants moved to dismiss the First Amended Complaint, raising nearly
10 identical procedural arguments in support of this second motion to dismiss. ECF No.
11
68. By written stipulation of all parties, Plaintiffs then filed their Second Amended
12
13 Complaint. ECF No. 74.
14 The Second Amended Complaint differs from the First Amended Complaint in
15
that it eliminates all claims asserted against the former Federal Contractor Defendants
16
17 and eliminates the claims for violation of the Americans with Disabilities Act,
18 wrongful termination under Title VII and the Washington Law Against
19
Discrimination, breach of contract, intentional or negligent infliction of emotional
20
21 distress, and the freestanding claim for violation of 42 U.S.C. § 1983. Compare ECF
22 No. 60 with ECF No. 74. But for the remaining claims, the underlying procedural and
23
jurisdictional flaws remain the same.2 Plaintiffs wholly fail to sufficiently plead facts
24
25 2
The Second Amended Complaint also reincorporates an error from the initial
26
27 Complaint, in that it again fails to name all parties in the caption in compliance with
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 2
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to support their individualized claims, and they fail to articulate their constitutional
1
2 arguments through a viable cause of action. In a case with 314 individual plaintiffs
3
asserting both facial and as-applied challenges, Plaintiffs’ failures to meet basic
4
pleading standards are fatal. Even accepting Plaintiffs’ current factual allegations as
5
6 true, Plaintiffs’ Second Amended Complaint should be dismissed, as all causes of
7
action asserted are either nonjusticiable or fail to state a claim.3
8
9 II. Motion to Dismiss Standard
10
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) is
11
12 addressed to the court’s subject matter jurisdiction. Questions of justiciability are
13 “inherently jurisdictional.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir.
14
2007). A court may not hear claims over which it lacks subject-matter jurisdiction.
15
16 Fed. R. Civ. P. 12(h)(3). A Rule 12(b)(1) motion may be classified as either facial, in
17 which case the court’s inquiry is limited to the allegations in the complaint, or factual,
18
in which case the court may consider extrinsic evidence. Safe Air for Everyone v.
19
20 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In resolving a factual attack on
21
22 Fed. R. Civ. P. 10(a). The Court previously identified this deficiency for Plaintiffs at
23
the TRO stage. ECF No. 58 at 3–4.
24
25
3
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).
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 3
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jurisdiction, the district court may review evidence beyond the complaint without
1
2 converting the motion to dismiss into a motion for summary judgment.” Id. The
3
party asserting jurisdiction bears the burden of proof on the issue. See Lujan v. Defs.
4
of Wildlife, 504 U.S. 555, 561 (1992).
5
6 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is
7
addressed to the sufficiency of the pleading of claims in the complaint. Federal Rule
8
9 of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing
10 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To proceed past the
11
pleading stage, the plaintiff’s factual allegations, accepted as true, must state a claim
12
13 that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
14 A claim is plausible when the plaintiff pleads facts that allow the court to “draw the
15
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
16
17 v. Iqbal, 556 U.S. 662, 678 (2009). While detailed factual recitations are not required,
18 the plaintiff must come forward with more than “unadorned, the-defendant-
19
unlawfully-harmed-me” allegations. Id. Formulaic recitations of the elements of a
20
21 claim, supported by mere labels and conclusions, are not sufficient. Twombly, 550
22 U.S. at 555.
23
24 III. Argument
25 A. Plaintiffs fail to state any claim against Secretary Granholm or Brian
Vance.
26
As the Court correctly ruled at the TRO stage, Plaintiffs did not state a claim for
27
28 relief against Mr. Vance in their initial Complaint. ECF No. 58 at 4. Plaintiffs’
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 4
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Second Amended Complaint still fails to state any claim against Mr. Vance, and it
1
2 similarly fails to state a claim against Secretary Granholm. The Second Amended
3
Complaint identifies Brian Vance as the manager of the Hanford Site and Secretary
4
Granholm as the Secretary of Energy. ECF No. 74 at ¶¶ 13–14. But Plaintiffs still
5
6 have not alleged any facts to indicate how Secretary Granholm or Mr. Vance are
7
plausibly liable for any of the specific causes of action asserted, beyond the
8
9 conclusory allegation that they have “adopted and implemented” the two Executive
10 Orders. ECF No. 74 at ¶ 347. In failing to make any other factual allegation
11
regarding Secretary Granholm or Mr. Vance, Plaintiffs fail to offer more than
12
13 insufficient “unadorned, the-defendant-unlawfully-harmed-me” allegations. Iqbal,
14 556 U.S. at 678. Additionally, Secretary Granholm and Mr. Vance appear to be the
15
only defendants for Plaintiffs’ remaining Section 1983 claims (Counts 1 and 3), as
16
17 President Biden is unquestionably immune from those claims. Forrester v. White, 484
18 U.S. 219, 225 (1988). But federal actors are only subject to Section 1983 liability in
19
limited circumstances, which Plaintiffs have not alleged here. See Cabrera v. Martin,
20
21 973 F.2d 735, 741 (9th Cir. 1992). The Court should dismiss all claims asserted
22 against Secretary Granholm and Mr. Vance.
23
24 B. The overwhelming majority of Plaintiffs lack standing to sue.
25 Federal Defendants previously submitted detailed briefing challenging every
26 Plaintiff’s standing to sue in this case. ECF No. 59 at 4–11. As with the First
27
Amended Complaint, the Second Amended Complaint now alleges sufficient facts to
28
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indicate, accepting those allegations as true, that seven Plaintiffs have suffered an
1
2 actual and concrete injury, not of their own making, that supports their standing to
3
sue. ECF No. 74 at ¶¶ 53, 65, 67, 78, 130, 171, 251. However, the remaining 307
4
Plaintiffs continue to lack standing, and the Court lacks jurisdiction over their claims.
5
6 Although the Second Amended Complaint makes different specific factual allegations
7
regarding the individual Plaintiffs’ circumstances, these Plaintiffs’ claims still largely
8
9 fall into the same categories of being unripe, lacking injury, facing self-inflicted
10 injuries, or insufficiently pleading their claims.
11
Article III courts are courts of limited jurisdiction, and questions of
12
13 justiciability are “inherently jurisdictional.” See Corrie, 503 F.3d at 981. Challenges
14 to standing are properly asserted in a Rule 12(b)(1) motion. Chandler v. State Farm
15
Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). The “irreducible
16
17 constitutional minimum of standing” requires that the plaintiff suffer an “injury in
18 fact” that is “concrete and particularized” and “actual or imminent,” that there is a
19
“causal connection between the injury and the conduct complained of,” and that it is
20
21 “likely” that the injury is redressable by a favorable decision. Lujan, 504 U.S. at 560–
22 61 (citations omitted).
23
Plaintiffs’ alleged injuries in this case are based on their supposed forced choice
24
25 between receiving an unwanted vaccine or jeopardizing their continued employment.
26 They explicitly identify their “imminent and wrongful termination” as the harm they
27
face. ECF No. 74 at ¶ 8. But as in the initial and First Amended Complaints, the vast
28
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majority of Plaintiffs do not presently face this injury, and if they do, that injury is
1
2 self-inflicted. Accepting as true at this stage of the proceedings that Plaintiffs have
3
good-faith medical or religious objections to vaccination, Plaintiffs are able to pursue
4
an exception and accommodations from the vaccine mandates. Based on the
5
6 allegations now raised in the Second Amended Complaint, Plaintiffs have generally
7
pursued that option as follows: (1) some have not applied for an exception to the
8
9 vaccination requirement; (2) some are already vaccinated or have been granted an
10 accommodation; (3) some have not alleged the status of any request for an exception;
11
and (4) some have sought an exception but have not yet had accommodations
12
13 determined. For slightly different reasons, each of these plaintiff categories lack
14 standing to pursue their claims.
15
16 i. Plaintiffs who have not applied for any exception face self-inflicted
injuries that cannot support standing.
17
18 Three Plaintiffs in this case affirmatively pled that they have not applied for an
19 exception to their employers’ implementation of the vaccine mandates. ECF No. 74 at
20
¶¶ 46, 173, 223. One other Plaintiff alleges he moved out of state before his
21
22 accommodation request was determined, and he has since been terminated because he
23 cannot telework from out of state. ECF No. 74 at ¶ 37. These Plaintiffs lack standing
24
because their injuries are self-imposed.
25
26 In order to meet the causation requirement of the standing test, a plaintiff’s
27 injury must be “fairly traceable to the challenged action.” Monsanto Co. v. Geertson
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Seed Farms, 561 U.S. 139, 149 (2010). Plaintiffs “cannot manufacture standing
1
2 merely by inflicting harm on themselves,” as such harms are not fairly traceable to the
3
defendant’s conduct. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013). The
4
Executive Orders challenged here implement vaccination requirements, but they allow
5
6 for exceptions as required by law. Plaintiffs who have good-faith medical or religious
7
objections to vaccination have the ability to seek exceptions from the requirement by
8
9 seeking accommodations from their employers. But the three Plaintiffs who have
10 declined to pursue exceptions, and the one who disqualified himself from employment
11
before completing that process, do not face potential termination because the vaccine
12
13 mandates unduly burden their legal rights; rather, they are facing potential
14 termination, or actual termination, because they declined to fully pursue the exception
15
and accommodation process available to them. That injury is not traceable to
16
17 Defendants. Because these Plaintiffs’ claimed injuries are self-inflicted, they are
18 insufficient to support standing to sue and these Plaintiffs should be dismissed from
19
this case.
20
21 ii. Plaintiffs who have already been vaccinated or who have been
22 provided accommodations do not face an injury that gives them
standing.
23
The Plaintiffs in this case who are already vaccinated, and those who have
24
25 received accommodations from their employers, do not have standing in this case
26 because they are fully compliant with the vaccination mandates and do not face the
27
injuries alleged in the Amended Complaint.
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The “injury in fact” component of standing “requires that the party seeking
1
2 review be himself among the injured.” Lujan, 504 U.S. at 563 (citation omitted). Of
3
the 314 Plaintiffs in this case, 56 have alleged that they have been granted some form
4
of accommodation by their employer. ECF No. 74 at ¶¶ 21–23, 31, 34, 39, 41, 45, 49,
5
6 50, 52, 59, 63, 69, 73, 80, 88, 91, 94, 115, 117, 122, 126, 127, 134, 140, 143, 146,
7
160–62, 170, 176, 184, 186, 194, 202, 219, 222, 224, 227, 229, 239, 264, 268, 269,
8
9 272, 288, 301–04, 310–12, 322. Three other Plaintiffs have alleged that they are
10 already fully vaccinated and are therefore compliant with the vaccination mandate.
11
ECF No. 74 at ¶¶ 70, 104, 172. Together, these 59 Plaintiffs do not face termination
12
13 from their employment based on the challenged vaccination mandates because they
14 are fully compliant with the vaccination requirement, either by becoming fully
15
vaccinated or by obtaining a legal exception from the policy. These Plaintiffs
16
17 therefore do not face the injury they allege to support their standing to sue in this case,
18 and their claims should be dismissed.
19
20 iii. Plaintiffs who have not alleged their exception status have not met
their burden of establishing jurisdiction.
21
22 Some Plaintiffs have not alleged any information about whether they have
23 sought exception requests, and therefore have not sufficiently pled information to
24
establish that they have standing to sue. “The party invoking federal jurisdiction bears
25
26 the burden of establishing standing.” Clapper, 568 U.S. at 411–12 (citation and
27 quotation marks omitted). Since standing is “an indispensable part of the plaintiff’s
28
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case, each element must be supported in the same way as any other matter on which
1
2 the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
3
required at the successive stages of the litigation.” Lujan, 504 U.S. at 561.
4
Twenty Plaintiffs here have alleged their job titles, but have alleged no
5
6 information about their vaccination status, the nature of their objection, or whether
7
they have pursued an exception from the vaccination requirement. ECF No. 74 at
8
9 ¶¶ 32, 99–101, 109, 120, 135, 149, 183, 191, 209, 213, 220–21, 226, 275, 278, 305,
10 314, 321. Three others have alleged that they are partially vaccinated, but do not
11
indicate whether they have pursued an exception from the remainder of the
12
13 vaccination requirement. ECF No. 74 at ¶¶ 114, 130, 254. These allegations are
14 insufficient to meet Plaintiffs’ burden of establishing they have standing. If any of
15
these Plaintiffs who have good-faith religious or medical objections did not apply for
16
17 an exception from the vaccination requirement, they fall into the first category of
18 plaintiffs whose injuries are self-inflicted and not traceable to the challenged
19
Executive Orders. If any of these Plaintiffs are granted accommodations, they will be
20
21 compliant with the vaccination requirement and will fall into the second category of
22 plaintiffs who do not face any imminent injury in fact. Without alleging more
23
information, it is impossible to tell whether these Plaintiffs have standing.4 They
24
25 4
As was true in the First Amended Complaint, eight Plaintiffs fail to identify their
26
27 employers, so it is impossible to determine from the pleadings whether these Plaintiffs
28
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therefore fail to meet their burden of establishing standing at this stage in the
1
2 proceedings, and their claims should be dismissed.
3
iv. Plaintiffs who have not yet had their accommodation requests
4
determined raise unripe claims.
5
The remainder of the individually named Plaintiffs allege that they have not yet
6
been granted accommodations, generally following the pattern pleading that the
7
8 Plaintiff has “submitted a religious and/or medical exemption, “accepted by” the
9
employer, “but has been provided no accommodation” or “was originally not provided
10
11 an accommodation.” The Court should dismiss these claims as unripe.
12 The ripeness doctrine guards against “premature adjudication” of abstract
13
disagreements and theoretical harms. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538
14
15 U.S. 803, 807–08 (2003) (citation omitted). Ripeness contains both a constitutional
16 and a prudential component. Coons v. Lew, 762 F.3d 891, 897 (9th Cir. 2014). The
17
constitutional component derives from Article III, which limits the jurisdiction of
18
19 federal courts to deciding actual cases or controversies. Id. A case is not
20 “constitutionally” ripe when the plaintiff’s entitlement to relief depends on
21
“contingent future events that may not occur as anticipated, or indeed may not occur
22
23 at all.” Trump v. New York, 141 S. Ct. 530, 535 (2020) (per curiam) (citation
24 omitted). The prudential component of the ripeness inquiry focuses on whether the
25
26 are even subject to either Executive Order, let alone which one. ECF No. 74 at ¶¶ 27,
27
72, 80, 146, 159, 258, 305, 314.
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issues in the case are “fit for review” on the record presented. Nat’l Park Hosp. Ass’n,
1
2 538 U.S. at 812. The key consideration is whether “further factual development
3
would significantly advance [the Court’s] ability to deal with the legal issues
4
presented.” Id. (quotation and citation omitted); see also In re Coleman, 560 F.3d
5
6 1000, 1009 (9th Cir. 2009) (prudential considerations allow courts to “delay
7
consideration of the issue until the pertinent facts have been well-developed in cases
8
9 where further factual development would aid the court’s consideration”).
10 As the Court previously recognized at the TRO stage, Plaintiffs’ misleading
11
pleading language reveals that their claims are unripe. ECF No. 58 at 12–14.
12
13 Plaintiffs still do not allege that their requested accommodations have been denied,
14 and therefore they do not face their alleged “imminent and wrongful termination”
15
from employment with DOE or a Hanford contractor. ECF No. 74 at ¶ 8. Although
16
17 Plaintiffs’ word choice has changed between versions of the complaint, the
18 jurisdictional flaws remain the same: allegations that a Plaintiff “was not provided an
19
accommodation” or “was not originally provided an accommodation” are still not
20
5
21 allegations that the Plaintiff was actually denied an accommodation. As both a
22
23
24 5
In fact, the allegation that certain Plaintiffs were not “originally” accommodated can
25
alternatively be read to mean that the accommodation is either still pending or has
26
27 already been granted. If these Plaintiffs have actually been granted accommodations,
28
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constitutional and prudential matter, Plaintiffs have failed to allege claims that are ripe
1
2 for review. The Court should dismiss these claims for lack of standing.
3
C. Plaintiffs do not state a viable cause of action for violation of the
4
Procurement Act and their arguments fail on the merits (Count 4)
5
Plaintiffs purport to assert a statutory cause of action for violation of the
6
7 Procurement Act, 40 U.S.C. §§ 101, 121. ECF No. 74 at ¶¶ 369–83. But Plaintiffs
8 fail to identify any authority that permits them to assert the Procurement Act itself as a
9
privately enforceable cause of action. The Court should dismiss this claim as
10
11 improperly pled.
12 Moreover, Plaintiff’s arguments about the Procurement Act fail on the merits.
13
The Contractor Order is a valid exercise of the President’s authority to direct federal
14
15 contracting.6 The purpose of the Procurement Act is “to provide the Federal
16
17
then they fall into the category of Plaintiffs who do not face an injury supporting
18
19 standing.
20 6
The Contractor Order presently remains enjoined on a nationwide basis while an
21
appeal of the preliminary injunction is pending in the Eleventh Circuit Court of
22
23 Appeals. Georgia v. Biden, No. 21-14269. Oral argument is scheduled for April 8,
24 2022. Plaintiffs note that a number of other federal district courts have similarly
25
found other plaintiffs are likely to succeed on similar legal challenges to the
26
27 Contractor Order under the Procurement Act. ECF No. 74 at ¶ 371. Those decisions
28
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 13
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Government with an economical and efficient system” for, among other things,
1
2 “procuring and supplying property and nonpersonal services.” 40 U.S.C. § 101. The
3
Procurement Act empowers the President to “prescribe policies and directives that the
4
President considers necessary to carry out” the Act’s provisions, so long as the
5
6 directives are “consistent” with the Act. 40 U.S.C. § 121(a).
7
Presidential directives are consistent with this authority if they are “reasonably
8
9 related to the Procurement Act’s purpose of ensuring efficiency and economy in
10 government procurement.” Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170 (4th
11
Cir. 1981). Courts have “emphasized the necessary flexibility and ‘broad-ranging
12
13 authority’” that the Procurement Act provides. UAW-Labor Emp. and Training Corp.
14 v. Chao, 325 F.3d 360, 366 (D.C. Cir. 2003) (quoting AFL-CIO v. Kahn, 618 F.2d
15
784, 789 (D.C. Cir. 1979) (en banc)). The standard is “lenient” and can be satisfied
16
17 even when “the order might in fact increase procurement costs” in the short run. Id. at
18 366–67. Courts find a nexus even when “[t]he link may seem attenuated” and even if
19
one can “advance an argument claiming opposite effects or no effects at all.” Id.
20
21 “[T]his close nexus requirement [] mean[s] little more than that President’s
22 explanation for how an Executive Order promotes efficiency and economy must be
23
reasonable and rational.” Chamber of Com. of U.S. v. Napolitano, 648 F. Supp. 2d
24
25
26 are inconsistent with this Court’s prior findings on this issue, ECF No. 58 at 15–17,
27
and they are not binding on this Court.
28
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726, 738 (D. Md. 2009) (one sentence explanation sufficient); see also Chamber of
1
2 Com. of U.S. v. Reich, 74 F.3d 1322, 1333 (D.C. Cir. 1996) (“The President’s
3
authority to pursue ‘efficient and economic’ procurement . . . certainly reach[es]
4
beyond any narrow concept of efficiency and economy in procurement.”). And
5
6 indeed, the Procurement Act has been interpreted to allow the President to direct
7
federal contracting as it relates to a variety of substantive issues. See, e.g., City of
8
9 Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901 (10th Cir. 2004) (urban renewal);
10 Chao, 325 F.3d 360 (collective bargaining rights); Am. Fed’n of Gov’t Emps., AFL-
11
CIO v. Carmen, 669 F.2d 815 (D.C. Cir. 1981) (energy conservation during an oil
12
13 crisis); Kahn, 618 F.2d at 790 (noting multiple Presidents “prominent[ly]” used
14 FPASA to impose “a series of anti-discrimination requirements for Government
15
contractors”); Napolitano, 648 F. Supp. 2d at 729 (assessing employee work
16
17 eligibility through E-Verify). The Procurement Act “emphasiz[es] the leadership role
18 of the President in setting Government-wide procurement policy on matters common
19
to all agencies” and expects “the President [to] play a direct and active part in
20
21 supervising the Government’s management functions.” Kahn, 618 F.2d at 788.
22 As this Court has already recognized, the Contractor Order “easily satisfies the
23
nexus requirement” of the Procurement Act. ECF No. 58 at 16. The President
24
25 explained in Section 1 of the Contractor Order:
26 This order promotes economy and efficiency in Federal procurement by
27 ensuring that the parties that contract with the Federal Government provide
adequate COVID-19 safeguards to their workers performing on or in
28
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connection with a Federal Government contract . . . . These safeguards will
1
decrease the spread of COVID-19, which will decrease worker absence, reduce
2 labor costs, and improve the efficiency of contractors and subcontractors at sites
where they are performing work for the Federal Government.
3
4 86 Fed. Reg. at 50,985.
5
The Contractor Order is concerned with protecting the federal government’s
6
financial and operational interests as a contracting party. Ensuring that its contractors
7
8 do not suffer major disruptions from COVID-19 accomplishes just that. COVID-19 is
9
an airborne disease that spreads quickly, so in order to ensure that contractors do not
10
11 spread COVID-19 to one another, all contractors working in any given physical
12 workspace must be vaccinated. This is fully explained by the OMB Determination’s
13
approval of the Safer Federal Workforce Taskforce’s COVID-19 safety protocols,
14
15 which lays out that increased vaccinations will “decrease the spread of COVID-19,
16 which will in turn decrease worker absence, save labor costs on net, and thereby
17
improve efficiency in Federal contracting.” Determination of the Acting OMB
18
19 Director Regarding the Revised Safer Federal Workforce Taskforce Guidance for
20 Federal Contractors, 86 Fed. Reg. 63,418, 63,421–22 (Nov. 16, 2021). To anyone
21
who has lived through the COVID-19 pandemic and its resulting economic turmoil,
22
23 the nexus between reducing the spread of COVID-19 and economic efficiency should
24 be self-evident. While Plaintiffs may disagree with the President’s policy or consider
25
it unwise, the Executive Order’s explanation is sufficient to show the required nexus
26
27 between the policy and promoting economy and efficiency.
28
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Plaintiffs’ reliance on the Supreme Court’s recent decision in National
1
2 Federation of Independent Business v. Occupational Safety and Health
3
Administration (NFIB), 142 S. Ct. 661 (2022) (per curiam) is misplaced. ECF No. 74
4
at ¶¶ 5–7. The Supreme Court’s statutory analysis in NFIB rested on principles of
5
6 statutory construction that apply only where an administrative agency’s action would
7
bring about an enormous and transformative expansion of its regulatory authority—
8
9 not where, as here, the President exercises well-established power to manage the
10 federal government’s proprietary interests. In NFIB, the Supreme Court considered
11
whether the Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. § 651 et
12
13 seq., authorized the Occupational Safety and Health Administration (“OSHA”) to
14 issue an emergency temporary standard requiring “virtually all employers with at least
15
100 employees” to impose COVID-19 vaccination-or-testing obligations on their
16
17 employees. 142 S. Ct. at 662, 665. Based on its observation that OSHA’s mandate
18 applies to “84 million Americans” and represents a significant expansion of OSHA’s
19
regulatory authority, the Court relied on the proposition that Congress is expected “to
20
21 speak clearly when authorizing an agency to exercise [such] powers of vast economic
22 and political significance.” Id. at 665 (quoting Ala. Ass’n of Realtors v. Dep’t of
23
Health and Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam)). The Court held
24
25 that Congress had not “plainly authorized” OSHA’s vaccination-or-test standard
26 because the OSH Act permits OSHA to regulation only “occupational hazards,” and
27
COVID-19 is not a hazard unique to the workplace. Id. at 665–66.
28
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The “major questions” principles applied in NFIB are relevant only when an
1
2 administrative action represents an “enormous and transformative expansion in [an
3
agency’s] regulatory authority.” Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324
4
(2014) (emphasis added); accord NFIB, 142 S. Ct. at 665 (“Permitting OSHA to
5
6 regulate the hazards of daily life . . . would significantly expand OSHA’s regulatory
7
authority . . . .”); see also, e.g., Ala. Ass’n of Realtors, 141 S. Ct. at 2489; King v.
8
9 Burwell, 576 U.S. 473, 485–86 (2015); Gonzales v. Oregon, 546 U.S. 243, 267–68
10 (2006); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). In
11
promulgating the Contractor Order, the President did not exercise “regulatory
12
13 authority” of any kind. Rather, the President exercised the federal government’s
14 proprietary authority, as the purchaser of goods and services from those with whom it
15
contracts. See Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940) (“Like private
16
17 individuals and businesses, the Government enjoys the unrestricted power . . . to
18 determine those with whom it will deal, and to fix the terms and conditions upon
19
which it will make needed purchases.”). Unlike OSHA’s vaccination-or-test standard,
20
21 which directly regulated private employers pursuant to Congress’ Commerce Clause
22 authority, the Contractor Order imposes no generally applicable regulation on any
23
industry, entity, or individual. Instead, as an exercise of Congress’ powers under
24
25 distinct constitutional provisions, including the Spending Clause, the Contractor Order
26 reflects the President’s management decision to do business with only those entities
27
28
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willing to perform work for the federal government under certain contractual
1
2 standards.
3
The Supreme Court’s other recent COVID-19 vaccination decision in Biden v.
4
Missouri, 142 S. Ct. 647 (2022) (per curiam), provides this Court with relevant
5
6 instruction by analogy: namely, that the President’s “longstanding practice” of using
7
his authority under the Procurement Act to address a wide range of concerns related to
8
9 federal contractor operations is a strong indication that the Contractor Order is a
10 legitimate exercise of such authority. Cf. Missouri, 142 S. Ct. at 652. In Missouri, the
11
Supreme Court reviewed a Department of Health and Human Services (“HHS”)
12
13 regulation requiring hospitals and other healthcare facilities that participate in
14 Medicare or Medicaid to ensure that their staff are either vaccinated against COVID-
15
19 or receive a religious or medical exception. 142 S. Ct. at 650. Like this case,
16
17 Missouri involved a broad grant of statutory authority related to the expenditure of
18 federal funds. Compare id. at 652 (“Congress has authorized the Secretary to impose
19
conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds
20
21 necessary in the interest of the health and safety of individuals who are furnished
22 services.’” (quoting 42 U.S.C. § 1395x(e)(9))), with 40 U.S.C. §§ 101, 121
23
(authorizing the President to “prescribe policies and directives that the President
24
25 considers necessary” to promote “an economical and efficient system” for federal
26 procurement). Crucially, in determining the scope of HHS’s authority, the Supreme
27
Court looked to the agency’s “longstanding practice . . . in implementing the relevant
28
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statutory authorities.” Missouri, 142 S. Ct. at 652. Based on HHS’s historical
1
2 practice of imposing “conditions that address the safe and effective provision of
3
healthcare, not simply sound accounting,” the Court rejected a narrow reading of the
4
statute’s broad language because it was inconsistent with this historical precedent. Id.
5
6 Here, the Executive Branch’s longstanding practice of issuing executive orders
7
regarding federal procurement is similarly instructive and underscores the validity of
8
9 the Contractor Order. As the cases cited supra at p. 17 demonstrate, the Procurement
10 Act has long been understood to grant the President broad authority and discretion to
11
manage the federal procurement system, and the Contractor Order is a permissible
12
13 exercise of that authority. Just as the Supreme Court concluded that the Executive
14 Branch may make COVID-19 vaccination a “condition of participation” in Medicare
15
and Medicaid, 142 S. Ct. at 654, this Court should hold that the President, like any
16
17 other contractor, may make COVID-19 vaccination a condition of participation in
18 federal contracting.
19
20 D. The President is statutorily not subject to the Office of Federal
Procurement Policy Act (Count 5).
21
22 Plaintiffs’ claims for violation of federal procurement policy are unchanged
23 from the initial complaint and still fail as a matter of law. Plaintiffs seek to hold the
24
President liable for failing to comply with the notice and comment provisions of the
25
26 Office of Federal Procurement Policy (“OFPP”) Act. ECF No. 74 at ¶¶ 384–93
27 (citing 41 U.S.C. § 1707(a)(1)). Plaintiffs again identify no legal authority that allows
28
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them to assert the OFPP Act itself as a privately enforceable cause of action.
1
2 Moreover, the OFPP Act’s notice and comment provision only applies to “executive
3
agencies,” which does not include the President or the White House in its statutory
4
definition. 41 U.S.C. § 133. Because the President is not bound by the OFPP Act’s
5
6 notice and comment procedures, this claim should be dismissed.
7
8 E. Plaintiffs’ constitutional structural arguments (Counts 6–9, 13) are not
standalone causes of action and are insufficiently pled.
9
Plaintiffs raise a series of constitutional structural arguments seeking to
10
11 invalidate the Executive Orders as generally violating principles of federalism and
12 separation of powers. These claims should be dismissed for several reasons.
13
First, Plaintiffs’ abstract legal arguments are untethered to any specific cause of
14
15 action. Plaintiffs are certainly entitled to assert arguments about the constitutionality
16 of the Executive Orders, but in order to state a plausible claim for relief, they must
17
assert those arguments via an actual cause of action. These claims should be
18
19 dismissed for failure to state a claim upon which relief can be granted.
20 Second, Plaintiffs’ arguments are insufficiently pled. Plaintiffs’ pleading of
21
these claims is difficult to discern at best. While Plaintiffs have recited a series of
22
23 constitutional terms of art, their pleadings jumble multiple distinct constitutional
24 principles in such an incomprehensible way that none of their claims are plausible on
25
their face. Twombly, 550 U.S. at 570.
26
27
28
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As an example, Count 13 of the Second Amended Complaint purports to raise a
1
2 Commerce Clause challenge to the Executive Orders. But the substance of Count 13
3
is devoted to arguments about federalism and the anticommandeering principle. ECF
4
No. 74 at ¶¶ 455–57. Count 7 of the Second Amended Complaint purports to claim
5
6 that the Executive Orders violate separation of powers and federalism principles, but
7
the substance of Count 7 seems to challenge the constitutionality of the Procurement
8
9 Act itself under Article I, Section 8 of the Constitution. ECF No. 74 at ¶¶ 408–16.
10 Count 8 of the Complaint purports to assert that the Executive Orders violate
11
federalism principles by intruding on states’ police powers, but it is unclear how this
12
13 cause of action is different from the federalism claims that are also asserted in Count 7
14 and argued in support of Count 13. Compare ECF No. 74 at ¶¶ 417–22 with ¶¶ 456–
15
57. While Plaintiffs have recited constitutional law buzzwords, their pleadings are
16
17 substantively incomprehensible. The Court should dismiss these constitutional
18 structural arguments as insufficiently pled.
19
20 F. Plaintiffs’ APA claims (Counts 10–12) fail for lack of a proper
defendant.
21
Plaintiffs raise three claims that the Federal Acquisition Regulatory (“FAR”)
22
23 Council’s class deviation, the OMB Determination, and the Executive Orders
24 themselves all violate the APA. ECF No. 74 at ¶¶ 427–54. Presumably Plaintiffs
25
intended to assert all three APA claims against President Biden, as Secretary
26
27 Granholm and Mr. Vance have no connection to the promulgation of the Executive
28
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Orders, the FAR deviation, or the OMB determination. But the President cannot be
1
2 sued under the APA. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Because
3
Plaintiffs’ APA claims fail to name a proper defendant, they should be dismissed for
4
failure to state a claim.
5
6
G. Plaintiffs fail to adequately plead their equal protection challenge (Count
7 2).
8 Plaintiffs assert that their equal protection rights are being violated on the basis
9
of their status as having “natural immunity” against COVID-19. ECF No. 74 at ¶ 362.
10
11 Again, aside from the basic problem that still only a handful of Plaintiffs have alleged
12 their “natural immunity” status, a term that they also fail to define, Plaintiffs fail to
13
articulate an equal protection claim. “Natural immunity” is not a suspect class, so
14
15 Plaintiffs’ equal protection claim is subject to rational basis review. See Tandon v.
16 Newsom, 992 F.3d 916, 930 (9th Cir. 2021). And while Plaintiffs assert generally that
17
they are not receiving equal protection under the law, they fail to plead with any
18
19 specificity how they are being treated differently than other similarly situated
20 individuals on the basis of their status. See City of Cleburne, Tex. v. Cleburne Living
21
Center, 473 U.S. 432, 439 (1985) (“The Equal Protection Clause . . . is essentially a
22
23 direction that all persons similarly situated should be treated alike.”) Plaintiffs’ equal
24 protection claim should be dismissed for failure to state a claim.
25
26
27
28
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H. The vaccination mandates do not violate Plaintiffs’ substantive due
1
process rights (Count 3).
2
Plaintiffs’ substantive due process claim asserted in Count 3, and also argued in
3
Count 2, remains foreclosed by longstanding precedent. ECF No. 74 at ¶¶ 359, 364–
4
5 68. As the Supreme Court explained in addressing another vaccine mandate over 115
6
years ago, “the liberty secured by the Constitution of the United States to every person
7
8 within its jurisdiction does not import an absolute right in each person to be, at all
9 times and in all circumstances, wholly freed from restraint.” Jacobson v.
10
Massachusetts, 197 U.S. 11, 26 (1905). The Court continued, “[r]eal liberty for all
11
12 could not exist under the operation of a principle which recognizes the right of each
13 individual person to use his own, whether in respect of his person or his property,
14
regardless of the injury that may be done to others.” Id.
15
16 Courts today continue to rely on Jacobson to find that vaccination requirements
17 such as those at issue here do not burden any “fundamental right ingrained in the
18
American legal tradition.” Klaassen v. Tr. of Ind. Univ., 7 F.4th 592, 593 (7th Cir.
19
20 2021). As the cases cited in Federal Defendants’ TRO opposition brief demonstrate,
21 Plaintiffs do not have a fundamental liberty interest in avoiding vaccination, their
22
claims should be evaluated under rational basis review, and numerous courts,
23
24 including this Court, have recognized that stemming the spread of COVID-19 is a
25 legitimate state interest. See ECF No. 41 at 28–30.
26
Plaintiffs’ citation to inapplicable privacy case law does not change this legal
27
28 landscape. ECF No. 74 at ¶ 366. These “unadorned, the-defendant-unlawfully-
29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 24
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harmed-me” allegations are insufficient to meet Plaintiffs’ pleading burden. Iqbal,
1
2 556 U.S. at 678. The Court should dismiss Plaintiffs’ substantive due process claims
3
for failure to state a claim.
4
5 I. Plaintiffs’ free exercise claim is unripe and insufficiently pled (Count 1).
6 The Second Amended Complaint’s free exercise claim contains the same flaws
7
as the first two complaints. To the extent Plaintiffs intended to assert a facial First
8
9 Amendment challenge to the Executive Orders, such claim would fail on its face
10 because the vaccination mandates each provide for exceptions “as required by law.”
11
86 Fed. Reg. at 50,990; 86 Fed. Reg. at 50,985. And to the extent the Plaintiffs assert
12
13 an as-applied challenge to the vaccination mandate, their claims remain unripe and
14 insufficiently pled.
15
Plaintiffs purport to assert a claim under the Religious Freedom Restoration Act
16
17 (“RFRA”), but they fail to allege any specific facts that would allow this Court, and
18 Defendants, to evaluate their claims under RFRA’s legal framework. ECF No. 74 at
19
¶¶ 348–56. “To establish a prima facie RFRA claim, a plaintiff must present evidence
20
21 sufficient to allow a trier of fact rationally to find the existence of two elements. First,
22 the activities the plaintiff claims are burdened by the government action must be an
23
‘exercise of religion.’ Second, the government action must ‘substantially burden’ the
24
25 plaintiff’s exercise of religion.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,
26 1068 (9th Cir. 2008) (en banc) (citations omitted). Even under the deferential Rule 12
27
standard, the Court is not required to accept the sincerity of Plaintiffs’ asserted
28
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religious objections absent any supporting factual allegations. See Burwell v. Hobby
1
2 Lobby Stores, Inc., 573 U.S. 682, 717 n. 28 (2014) (“To qualify for RFRA’s
3
protection, an asserted belief must be ‘sincere’; a [claimant’s] pretextual assertion of a
4
religious belief in order to obtain an exemption . . . would fail.”).
5
6 This case involves 314 individual Plaintiffs. Not one of them has pleaded any
7
factual allegation to indicate what the nature of their asserted religious belief is, what
8
9 activity they assert qualifies as an “exercise of religion,” or how the Executive Orders
10 create a “substantial burden,” within the Ninth Circuit’s definition of that term of art,
11
on that exercise of religion. Navajo Nation, 535 F.3d at 1068. To proceed past the
12
13 pleading stage, the plaintiff’s factual allegations, accepted as true, must state a claim
14 that is “plausible on its face.” Twombly, 550 U.S. at 570. Having failed to allege
15
sufficient factual support for their free exercise claims, the Court should dismiss this
16
17 claim for failure to state a claim.
18
J. Plaintiffs Should Not Be Granted Leave to Amend.
19
Plaintiffs’ Second Amended Complaint should be dismissed with prejudice and
20
21 without leave to amend. The Federal Rules of Civil Procedure encourage leave to
22
amend be “freely given,” Fed. R. Civ. P. 15(a)(2), and “[d]ismissal without leave to
23
amend is improper unless it is clear, upon de novo review, that the complaint could
24
25 not be saved by any amendment.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519
26
F.3d 1025, 1031 (9th Cir. 2008) (citation omitted). But this case fits the bill.
27
28
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Plaintiffs have now had three opportunities to meet basic minimal pleading
1
2 standards, and they have failed to do so on each occasion. Defendants have
3
consequently filed three motions to dismiss focused on the same fundamental
4
procedural and jurisdictional flaws in this case. Those deficiencies have not been
5
6 meaningfully addressed in Plaintiffs’ ongoing amendments.7 The result is a now-third
7
attempt at a civil complaint which recycles the same grievances over the Executive
8
9 Orders but fails to conform to the basic pleadings requirements to file a lawsuit in
10 federal court. The Court noted as early as the TRO stage that many Plaintiffs assert
11
unripe claims, but Plaintiffs have failed upon repeated amendment to either plead
12
13 sufficient facts to correct their standing issues or to trim the Plaintiffs who lack
14 standing from the case. ECF No. 58 at 10–14. Plaintiffs continue to allege no facts to
15
support their individual free exercise claims. And while Plaintiffs seek to make
16
17 abstract arguments about the legality of the Executive Orders, they have repeatedly
18 failed to assert those arguments through cognizable causes of action or against proper
19
20
7
21 As a notable example, Defendants twice moved to dismiss the state law claims being
22 asserted against the federal actors, being sued in their official capacities, as barred by
23
sovereign immunity. Plaintiffs have eliminated those claims from the Second
24
25 Amended Complaint, but not before stating that they would reassert those claims in
26 state court, again in blatant disregard of the fundamental sovereign immunity issue.
27
ECF No. 71 at 10.
28
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defendants. To be sure, those causes of action do exist and have been properly pled
1
2 by other plaintiffs raising similar challenges to these Executive Orders in other federal
3
district courts. But Plaintiffs’ ongoing refusal to conform their pleadings to Article
4
III’s justiciability requirements and the Federal Rules of Civil Procedure, despite the
5
6 Court’s early identification of many of these foundational issues, demonstrates their
7
Complaint cannot be saved by ongoing amendment. Defendants should not be made
8
9 to continue expending public resources in defense of these improper pleadings. The
10 Court should dismiss the Second Amended Complaint with prejudice.
11
12 IV. Conclusion
13 For the reasons set forth above, Defendants respectfully request that Plaintiff’s
14 claims be dismissed with prejudice either for lack of subject matter jurisdiction
15
pursuant to Fed. R. Civ. P. 12(b)(1) or for failure to state a claim pursuant to Fed. R.
16
17 Civ. P. 12(b)(6), and that Defendants be dismissed as parties to this suit.
18
19 DATED this 18th day of March 2022.
20 Vanessa R. Waldref
21 United States Attorney
22 s/Molly M.S. Smith
23 John T. Drake
Molly M.S. Smith
24 Assistant United States Attorneys
25 Attorneys for Federal Defendants
26
27
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CERTIFICATE OF SERVICE
1
2 I hereby certify that on March 18, 2022, I caused to be delivered via the method
3
listed below the document to which this Certificate of Service is attached (plus any
4
exhibits and/or attachments) to the following:
5
6 NAME & ADDRESS Method of Delivery
7
Nathan J. Arnold ☒CM/ECF System
8 Arnold & Jacobowitz PLLC ☐Electronic Mail
9 2701 First Avenue, Suite 200 ☐U.S. Mail
Seattle, WA 98121
10 ☐Other: _______________________
nathan@CAJlawyers.com
11
Simon Peter Serrano ☒CM/ECF System
12 Silent Majority Foundation ☐Electronic Mail
5426 N. Rd. 68, Ste. D, Box 105
13 ☐U.S. Mail
Pasco, WA 99301
14 pete@silentmajorityfoundation.org ☐Other: _______________________
15
16 s/Molly M.S. Smith
Molly M.S. Smith
17
18
19
20
21
22
23
24
25
26
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29 FEDERAL DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED COMPLAINT - 29
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