Complaint - 1: DAVID G. DONOVAN, et al., v. JOSEPH R. BIDEN, in his official
Summary
A reply in support of the 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, in the U.S. District Court for the Eastern District of Washington, filed April 21, 2022 as ECF No. 84. The reply updates the court on other COVID-19 vaccine litigation, including an appeal in Brnovich v. Biden and the Fifth Circuit's decision in Feds for Medical Freedom v. Biden, which it argues supports dismissing the federal employee plaintiffs' claims under the Civil Service Reform Act. It argues that nearly all of the 314 plaintiffs lack standing, that the court should not reach the merits arguments, and that leave to amend should be denied. It asks the court to dismiss the complaint with prejudice and is signed by Assistant United States Attorneys, with a certificate of service.
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
Full text
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1375 Page 1 of 8
1 Vanessa R. Waldref
United States Attorney
2 Eastern District of Washington
3 John T. Drake
Molly M.S. Smith
4 Assistant United States Attorneys
5 Post Office Box 1494
Spokane, WA 99210-1494
6 Telephone: (509) 353-2767
7
8 UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
9
10 DAVID G. DONOVAN, et al., D
No. 4:21-cv-05148-TOR
11
Plaintiffs,
12 v.
REPLY IN SUPPORT OF
13 JOSEPH R. BIDEN, in his official DEFENDANTS’ MOTION TO
DISMISS SECOND AMENDED
14 capacity as President of the United States COMPLAINT
of America, JENNIFER
15 GRANHOLM, in her official capacity as
16 Secretary of the UNITED STATES
DEPARTMENT OF ENERGY, BRIAN
17 VANCE in his official capacity as
18 Manager of the UNITED STATES
DEPARTMENT OF ENERGY Hanford
19 Site,
20
Defendants.
21
22 Plaintiffs have not meaningfully addressed the persistent procedural
23
deficiencies in their Second Amended Complaint (SAC). The Court should exercise
24
25 its discretion to dismiss the SAC with prejudice.
26
27
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 1
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1376 Page 2 of 8
1 A. Update on Other COVID-19 Vaccine Litigation
2 Several of Plaintiffs’ assertions regarding developments in other COVID-19
3
vaccine cases warrant an update to this Court. First, contrary to Plaintiffs’ assertions,
4
5 the federal defendants in Brnovich v. Biden have in fact appealed the permanent
6 injunction against enforcement of the Contractor Order, EO 14042, previously entered
7
in the District of Arizona. Brnovich v. Biden, No. 2:21-cv-1568-MTL, ECF No. 179
8
9 (D. Ariz. Apr. 8, 2022) (notice of appeal), appeal docketed, No. 22-15518 (9th Cir.
10 Apr. 11, 2022). To the extent Plaintiffs imply that Federal Defendants here have
11
waived or otherwise abandoned arguments based on appellate activity in another case
12
13 in this circuit, Plaintiffs’ arguments are unpersuasive and factually incorrect.
14 Second, as Plaintiffs correctly note, the Fifth Circuit recently ordered the
15
preliminary injunction which had enjoined enforcement of the Employee Order on a
16
17 nationwide basis be vacated.1 Feds for Medical Freedom v. Biden, --- F.4th ---, 2022
18 WL 1043909, at *1 (5th Cir. Apr. 7, 2022). The Fifth Circuit concluded that the
19
district court lacked subject-matter jurisdiction to consider those federal employees’
20
21 challenges to the Employee Order because their claims were subject to the Civil
22 Service Reform Act of 1978 (CSRA), which requires that review of certain federal
23
employment claims be adjudicated exclusively through the Merit Systems Protection
24
25
1
The injunction remains in effect while issuance of the Fifth Circuit’s mandate is
26
27 pending.
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 2
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1377 Page 3 of 8
1 Board (MSPB) and the Federal Circuit. Id. at *2–*6; see also Rydie v. Biden, No. 21-
2 2359, 2022 WL 1153249, at *3–*8 (4th Cir. Apr. 19, 2022) (unpublished) (holding
3
the same). Although Federal Defendants have not previously raised a CSRA
4
5 argument in these proceedings, the Fifth Circuit’s reasoning is persuasive and
6 compelling. And importantly, “[c]ourts have an independent obligation to determine
7
whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz
8
9 Corp. v. Friend, 559 U.S. 77, 94 (2010); see also Fort Bend Cty., Texas v. Davis, 139
10 S. Ct. 1843, 1849 (2019) (“[C]hallenges to subject-matter jurisdiction may be raised
11
by the defendant at any point in the litigation, and courts must consider them sua
12
13 sponte.” (internal quotation marks and citation omitted)). Feds for Medical Freedom
14 thus provides an additional compelling reason to dismiss the Federal Employee
15
Plaintiffs’ claims here for lack of jurisdiction.
16
17 Finally, Plaintiffs make several references to the Supreme Court’s recent grant
18 of a partial stay of a Fifth Circuit decision in Austin v. U.S. Navy Seals 1-26, 595 U.S.
19
___, 142 S. Ct. 1301 (2022). Navy Seals concerns a Department of Defense directive
20
21 requiring COVID-19 vaccination for military personnel, which is different from the
22 two Executive Orders being challenged in this case. See U.S. Navy Seals v. Biden, 27
23
F.4th 336, 339–40 (5th Cir. 2022). Accordingly, any application that Navy Seals has
24
25 here is by analogy only.
26
27
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 3
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1378 Page 4 of 8
1 B. The Vast Majority of Plaintiffs Lack Standing
2 Plaintiffs’ response seeks to avoid addressing their constitutional standing
3
problems by conflating them with the concept of administrative exhaustion. That
4
5 some Plaintiffs “have begun the EEOC complaint process,” ECF No. 81 at 4, is
6 nonresponsive to their standing issues for two reasons: First, Plaintiffs’ exhaustion of
7
EEO remedies is irrelevant because Plaintiffs no longer assert Title VII claims in the
8
9 SAC. ECF No. 74. Second, even if they were asserting Title VII claims, exhaustion
10 of EEO administrative remedies is a statutory requirement, not a satisfaction of Article
11
III’s constitutional standing requirements. See 42 U.S.C. § 2000e-5 (Title VII
12
13 enforcement provisions). For similar reasons, Plaintiffs’ arguments about RFRA
14 exhaustion are not compelling. Regardless of what procedural exhaustion
15
requirements must be met to assert certain statutory claims, Plaintiffs lack
16
17 constitutional standing to sue. As previously argued, nearly all of the 314 Plaintiffs in
18 this case have claims that are either unripe, lack a sufficient constitutional injury, arise
19
from self-inflicted injuries, or are insufficiently pled to establish standing.2 ECF No.
20
21 79 at 8–16.
22
23
2
Plaintiffs also mischaracterize Federal Defendants’ motion as admitting that seven
24
25 PNNL employees have been terminated or placed on indefinite leave without pay.
26
ECF No. 81 at 3. This is not a correct characterization of Federal Defendants’
27
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 4
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1379 Page 5 of 8
1 Plaintiffs attempt to flip the procedural burden by arguing that it is Federal
2 Defendants who have not affirmatively identified to the Court those Plaintiffs who
3
have not suffered a constitutional injury to their religious liberty. ECF No. 81 at 7.
4
5 Aside from disregarding Federal Defendants’ extensive briefing of Plaintiffs’ standing
6 deficiencies identified by individual paragraph number in the SAC, Plaintiffs misstate
7
the burden of proof: it is Plaintiffs who bear the burden of pleading facts to establish
8
9 standing. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 411–12 (2013). Plaintiffs
10 have alleged that they face an injury in the form of “imminent and wrongful
11
termination” from their employment with the federal government or a federal
12
13 contractor based on their refusal to receive the COVID-19 vaccine. ECF No. 74 at
14 ¶ 8. But the policies they challenge provide exemptions to this requirement.
15
Plaintiffs’ failure to plead facts that indicate they have standing to challenge this
16
17 policy despite the availability of exemptions is fatal to their SAC, regardless of other
18 statutory exhaustion requirements.
19
20
21
22
23
24
argument, which accepts Plaintiffs’ factual allegations as true for the purposes of the
25
present motion, nor is it a correct recitation of the specific allegations Federal
26
27 Defendants cited from Plaintiffs’ SAC.
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 5
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1380 Page 6 of 8
1 C. The Court Should Not Reach Plaintiffs’ Merits Arguments in Light of
Their Procedural Deficiencies
2
3 Plaintiffs reassert their substantive arguments in support of the merits of their
4 legal challenges to the two Executive Orders. ECF No. 81 at 9–21. But Plaintiffs are
5
once again putting the cart before the horse. Plaintiffs have not addressed the
6
7 significant procedural flaws in their SAC, namely that they have not asserted their
8 claims via cognizable causes of action, that they have named improper defendants for
9
their claims, and that they have failed to plead sufficient facts to support the
10
11 individualized claims being raised by 314 unique Plaintiffs. See ECF No. 79 at 16–
12 29. Plaintiffs are, in many instances, asking for Federal Defendants to defend against,
13
and the Court to ultimately enter judgment on, causes of action that do not exist. And,
14
15 even where Plaintiffs have identified cognizable causes of action, they have named
16 legally improper defendants for those claims and fail to plead specific, non-conclusory
17
factual allegations in support of those claims. The Court need not consider Plaintiffs’
18
19 substantive arguments in light of these fundamental procedural defects.
20 D. Plaintiffs’ Response Demonstrates They Should Not Be Granted Leave
21 to Amend
22 Plaintiffs should not be afforded another opportunity to amend. Plaintiffs are
23
apparently determined to obtain a judicial decision on their policy grievances, but they
24
25 have repeatedly failed to conform their pleadings to the basic requirements of the
26 Federal Rules of Civil Procedure and Article III’s justiciability requirements. Despite
27
multiple rounds of briefing now, in which Federal Defendants have repeatedly raised
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 6
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1381 Page 7 of 8
1 the same procedural arguments, as well as the Court’s identification of several
2 procedural defects during the TRO stage of the case, Plaintiffs continually fail to offer
3
meaningful responses to these procedural deficiencies. Although leave to amend a
4
5 complaint generally should be freely given, here, a Third Amended Complaint would
6 be futile considering Plaintiffs’ ongoing failure to comply with even simple
7
procedural and jurisdictional requirements. The Court should dismiss the SAC with
8
9 prejudice.
10
DATED this 21st day of April, 2022.
11
12 Vanessa R. Waldref
United States Attorney
13
14 s/ Molly M.S. Smith
John T. Drake
15 Molly M.S. Smith
16 Assistant United States Attorneys
Attorneys for Federal Defendants
17
18
19
20
21
22
23
24
25
26
27
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 7
30
Case 4:21-cv-05148-TOR ECF No. 84 filed 04/21/22 PageID.1382 Page 8 of 8
1 CERTIFICATE OF SERVICE
2 I hereby certify that on April 21, 2022, I caused to be delivered via the method
3 listed below the document to which this Certificate of Service is attached (plus any
exhibits and/or attachments) to the following:
4
5 NAME & ADDRESS Method of Delivery
6
Nathan J. Arnold, WSBA No. 45356 ☒CM/ECF System
7 Arnold & Jacobowitz PLLC ☐Electronic Mail
2701 First Avenue, Suite 200 ☐U.S. Mail
8
Seattle, WA 98121
☐Other: _______________________
9 nathan@CAJlawyers.com
10
Simon Peter Serrano, WSBA No. 54769 ☒CM/ECF System
11 Silent Majority Foundation ☐Electronic Mail
5426 N. Rd. 68, Ste. D, Box 105
12 ☐U.S. Mail
Pasco, WA 99301
13 pete@silentmajorityfoundation.org ☐Other: _______________________
14
15
s/Molly M.S. Smith
16 Molly M.S. Smith, AUSA
17
18
19
20
21
22
23
24
25
26
27
28
IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS SECOND AMENDED
29 REPLY
COMPLAINT - 8
30File and source
- File
- 4-21-cv-05148_RECAP_gov.uscourts.waed.97667.84.0.pdf
- Size
- 210,272 bytes
- SHA-256
- 475ce55b913b29d85822f43125b08f69bab844e21690e0db4ba5fcfe985c4b0f
- Original
- No public link identified.