Donovan v. Biden

603 F.Supp.3d 975

David G. DONOVAN et al., Plaintiffs,

v.Joseph R. BIDEN, in his official capacity as President of the United States of America, Jennifer Granholm, in her official capacity as Secretary of the United States Department of Energy, Brian Vance in his official capacity as Manager of the United States Department of Energy Hanford Site, Defendants.

NO. 4:21-CV-5148-TOR

United States District Court, E.D. Washington.

Signed May 12, 2022

Nathan J. Arnold, Arnold Jacobowitz PLLC, Seattle, WA, Simon Peter Serrano, Silent Majority Foundation, Pasco, WA, for Plaintiffs.

John T. Drake, Molly Smith, U.S. Attorney's Office, Spokane, WA, for Defendants Brian Vance, Joseph R. Biden.

Molly Smith, U.S. Attorney's Office, Spokane, WA, for Defendant Jennifer Granholm.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

THOMAS O. RICE, United States District Judge BEFORE THE COURT is Defendants’ Motion to Dismiss (ECF No. 79). This matter was submitted for consideration with telephonicoral argument on May 11, 2022. Nathan J. Arnold and Simon Peter Serrano appeared on behalf of Plaintiffs. Molly M.S. Smith and John T. Drake appeared on behalf of Defendants. The Court has reviewed the record and files herein, considered the parties’ oral arguments, and is fully informed. For the reasons discussed below, Defendants’ Motion to Dismiss (ECF No. 79) is GRANTED .

BACKGROUND

This matter relates to President Biden's Executive Orders issued on September 9, 2021. A detailed factual background is discussed in the Court's Order Denying Temporary Restraining Order. ECF No. 58.

On March 4, 2022, Plaintiffs filed a Second Amended Complaint ("SAC"). ECF No. 74. Plaintiffs voluntarily dismissed all claims asserted against Contractor Defendants McCain, Sax, Wilkinson, Hardy, Whitmer, Ashby, and Eschenberg, as well as their claims for violation of the Americans with Disabilities Act, wrongful termination under Title VII and the Washington Law Against Discrimination, breach of contract, intentional or negligent infliction of emotional distress, and a freestanding claim under 42 U.S.C. § 1983. Compare ECF No. 60 with ECF No. 74. The remaining Federal Defendants Biden, Granholm, and Vance ("Defendants") filed the present Motion to Dismiss on March 18, 2022, arguing the SAC continues to suffer from the same procedural and jurisdictional flaws as prior pleadings, and that Plaintiffs have failed to state claims upon which relief may be granted. ECF No. 79.

DISCUSSION

I. Legal Standard

A motion to dismiss for failure to state a claim "tests the legal sufficiency" of the plaintiff's claims. Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). To withstand dismissal, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). This requires the plaintiff to provide "more than labels and conclusions, and a formulaic recitation of the elements." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. While a plaintiff need not establish a probability of success on the merits, he or she must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

When analyzing whether a claim has been stated, the Court may consider the "complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice." Metzler Inv. GMBH v. Corinthian Colleges, Inc. , 540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A plaintiff's "allegations of material fact are taken as true and construed in the light most favorable to the plaintiff[,]" however "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." In re Stac Elecs. Sec. Litig. , 89 F.3d 1399, 1403 (9th Cir. 1996) (citation and brackets omitted).

In assessing whether Rule 8(a)(2) has been satisfied, a court must first identify the elements of the plaintiff's claim(s) and then determine whether those elements could be proven on the facts pled. The court may disregard allegations that are contradicted by matters properly subject to judicial notice or by exhibit. Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). The court may also disregard conclusory allegations and arguments which are not supported by reasonable deductions and inferences. Id.

The Court "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 662, 129 S.Ct. 1937. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. at 678, 129 S.Ct. 1937 (citation omitted). A claim may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Navarro , 250 F.3d at 732.

A. Claims Asserted Against Defendants Vance and Granholm

As an initial matter, Plaintiffs continue to name Defendants Vance and Granholm in the SAC but fail to allege any facts indicating how either of these individuals could be held liable for the Executive Orders. ECF No. 74 at 4, ¶¶ 13–14. The causes of action challenge either the Executive Orders themselves or President Biden's authority to issue the Orders. Aside from a single sentence, Plaintiffs do not plead any facts related to Defendants Vance and Granholm or actions they specifically undertook to violate Plaintiffs’ asserted rights. Id. at 71–72 at ¶ 347. Plaintiffs’ allegations are insufficient to survive a motion to dismiss. Accordingly, all claims asserted against Defendants Vance and Granholm are dismissed.

B. Standing

Defendants seek dismissal of 307 of the 314 Plaintiffs on the grounds that they lack standing. ECF No. 79 at 9. To establish standing in federal court, a plaintiff must demonstrate three elements: (1) plaintiff must have suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) there must be a causal connection between the injury and the challenged conduct that is fairly traceable to the defendant's actions; and (3) it must be "likely" as opposed to "speculative" that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Additionally, courts will consider "whether the alleged injury is more than a mere generalized grievance, whether the plaintiff is asserting her own rights or the rights of third parties, and whether the claim falls within the zone of interests to be protected or regulated by the constitutional guarantee in question." Wolfson v. Brammer , 616 F.3d 1045, 1056 (9th Cir. 2010) (internal quotations and citation omitted). The party invoking federal jurisdiction bears the burden of establishing these elements. Lujan , 504 U.S. at 561, 112 S.Ct. 2130.

The vast majority of Plaintiffs fail to establish they meet the standing requirements to maintain this action. First, the vaccine requirements of the Executive Orders allow for religious and medical exemptions as required by law. Plaintiffs cannot "manufacture" their own standing by failing to pursue these exemptions. Clapper v. Amnesty Int'l USA , 568 U.S. 398, 416, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). As such, those Plaintiffs who have not yet applied for a vaccination exemption cannot establish a causal connection between an alleged harm and Defendants’ conduct. See, e.g. , ECF No. 74 at 12, ¶ 46; at 41, ¶ 173; at 49, ¶ 223. Plaintiffs who fail to identify their employer also cannot establish a causal connection between a harm and Defendants’ action because it is not clear whose actions these Plaintiffs are challenging. See, e.g., id. at 36, ¶ 146; at 38, ¶ 159.

Next, Plaintiffs who have been vaccinated or provided accommodations cannot allege any actual or imminent harm because they are in compliance with the vaccine requirements and do not face any potential adverse employment actions due to a failure to comply with the Executive Orders. See, e.g., id. at 6–7, ¶¶ 21–23; at 8, ¶ 31; at 9, ¶ 34. Similarly, those who have failed to provide information regarding their exemption status or precise vaccination status fail to establish they face actual or imminent harm. See, e.g., id. at 8, ¶ 32; at 25–26, ¶¶ 99–101; at 27, ¶ 109; at 28, ¶ 114; at 29, ¶ 121; at 32, ¶ 130. Without knowing whether these Plaintiffs are in compliance with the vaccination or exemption requirements, it is impossible to know whether they could face an adverse employment action.

Finally, Plaintiffs who have not yet completed the exemption request process do not have claims that are presently ripe for adjudication. See, e.g., id. at 42, ¶ 181; at 46, ¶ 207; at 47, ¶ 209; at 49, ¶ 228. As the Court discussed in its Order Denying Temporary Restraining Order, the constitutional component of the ripeness doctrine requires a definite and concrete harm. ECF No. 58 at 11. Because it is not yet clear whether these Plaintiffs will face any adverse employment action, it is impossible for the Court to assess Defendants’ liability.

For these reasons, the majority of Plaintiffs have failed to state a claim upon which relief may be granted. With the exception of the seven Plaintiffs identified in Defendants’ Motion to Dismiss (ECF No. 79 at 9), the...