Duran v. Cal. Dep't of Forestry & Fire Prot.

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RALPH DURAN, MICHAEL ESPARZA, Plaintiffs, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, CALIFORNIA DEPARTMENT OF HUMAN RESOURCES, JOE TYLER, ERAINA ORTEGA, Defendants.

No. 22-cv-06120-CRB

United States District Court, N.D. California

August 7, 2023

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

Plaintiffs Ralph Duran and Michael Esparza bring this action for declaratory and injunctive relief against their employer, the California Department of Forestry and Fire Protection (“CAL FIRE”), the California Department of Human Resources (“CalHR”), and the respective heads of those agencies, Joe Tyler and Eraina Ortega. Compl. (dkt. 1) ¶¶ 16, 11-14. Plaintiffs assert that Defendants forced their employees to conform with a mandatory COVID-19 testing program that required the submission of personal and medical information and waiver of their privacy rights to a third-party vendor, Color Health, Inc. (“Color”). Id. ¶¶ 6-8.

Defendants move for judgment on the pleadings. See Mot. (dkt 46). As explained below, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and GRANTS the motion.

I. BACKGROUND

A. Parties

Plaintiff Ralph Duran is employed by CAL FIRE as a Fire Captain. Compl. ¶ 9. Plaintiff Michael Esparza is also employed by CAL FIRE; he was a Fire Apparatus Engineer until on or about January 23, 2022, when he became a Fire Captain. Compl. ¶ 10; Amended Answer (dkt. 43) ¶ 10.

CAL FIRE is a state agency that provides fire protection and stewardship services throughout the state. Compl. ¶ 11. CalHR is the appointing authority of CAL FIRE employees and acts as the representative of the governor in his capacity as “state employer” for labor relations purposes. Compl. ¶ 12; FAA ¶ 12. Defendant Joe Tyler is the Director of CAL FIRE; defendant Eraina Ortega is the Director of CalHR. Compl. ¶¶ 13-14.

B. COVID-19 Testing Policy

In August 2021, CAL FIRE implemented a policy requiring its employees to either show proof of vaccination against COVID-19 or undergo weekly testing. Id. ¶¶ 20-21. Because they did not provide proof of vaccination, Plaintiffs were subject to weekly testing. Id. ¶¶ 3, 9-10, 41-45. Under this policy, failure to comply could result in disciplinary action up to and including dismissal. Id. ¶ 21.

CAL FIRE's mandatory testing program was administered by a third-party vendor, Color. Id. ¶¶ 4, 22. To undergo testing, Plaintiffs were required to disclose personal information and sign privacy waivers. Id. ¶¶ 4, 22, 41, 43. These waivers allowed Color to disclose their provided personal and medical information (including test results, genetic data, and family health information) to third parties, including not only governmental agencies and medical providers but also unidentified, possibly foreign, companies. Id. ¶¶ 23-40. Color retained broad leeway to disclose said information, including for purposes unrelated to COVID-19 testing. Id. ¶ 26.

At some point after January 19, 2022, Color revised its policies, including its privacy policy. Id. ¶¶ 30-31. Although the new policies seemingly limited the scope of Color's privacy waivers, Plaintiffs allege that the revised terms were so muddled that Color retained the same leeway to disclose private data as before. Id. ¶¶ 30-40.

On September 15, 2022, CAL FIRE announced that it would begin “transitioning away from mandatory testing.” Id. ¶ 50. Plaintiffs allege that it is not clear which aspects of the program may continue in the future, but mandatory testing is not currently required. Id. Plaintiffs further allege that Color retains their confidential information, that Color has already disclosed confidential information to third parties, and that CAL FIRE may reactivate the testing program at any time. Id. ¶ 51.

C. Procedural History

Plaintiffs assert seven causes of action for violations of the ADA, the Genetic Information Nondiscrimination Act, Article I of the California Constitution, and the Fourth, Fifth, and Fourteenth Amendments, seeking declaratory and injunctive relief. Id. ¶¶ 57-105.

After Plaintiffs filed their complaint, Defendants answered, asserting sixty-six affirmative defenses. See Answer (dkt. 21) ¶¶ 118-183. Plaintiffs moved to strike. Mot. to Strike (dkt. 25). The Court denied the motion, giving Defendants leave to amend their answer. Order Denying Mot. to Strike (dkt. 42). Defendants amended their answer, and the instant motion followed. See Amended Answer; see also Mot.; Opp'n (dkt. 48); Reply (dkt. 49).

II. LEGAL STANDARD

A Rule 12(c) motion for judgment on the pleadings is properly granted when the material facts are not in dispute and the moving party is entitled to judgment as a matter of law. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Because a Rule 12(c) motion for judgment on the pleadings is “functionally identical” to a Rule 12(b)(6) motion to dismiss, the same legal standard applies. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011).

Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either “a cognizable legal theory” or “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019).

Whether a complaint contains sufficient factual allegations depends on whether it pleads enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. When evaluating a motion to dismiss, the court “must take all factual allegations as true and draw all reasonable inferences in favor of the nonmoving party.” Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir. 2023) (citing Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)).

If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court has discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

III. DISCUSSION

Defendants raise three individually sufficient grounds for a judgment in their favor-sovereign immunity, standing, and mootness. Each is addressed in turn below.

A. Defendants Are Immune from Suit Under the Eleventh Amendment

Defendants assert that Plaintiffs' claims are barred because the state agency Defendants (CAL FIRE and CalHR) have not waived sovereign immunity and the state officer Defendants (Tyler and Ortega) cannot be sued under Ex Parte Young, 209 U.S. 123 (1908). Mot. at 12-16, Reply at 1-5. The Court agrees.

1. State Agency Defendants Have Not Waived Sovereign Immunity

Defendants assert that the state agency Defendants are entitled to sovereign immunity under the Eleventh Amendment, they have not waived that immunity, and therefore the state constitutional privacy claim (the only claim brought against the agency Defendants, see Compl. ¶¶ 79-87) is barred. Mot. at 12-13. Plaintiffs argue that Eleventh Amendment immunity is an affirmative defense, which is the Defendants' burden to prove, and they have failed to do so. See Opp'n at 8 (citing ITSI T.V. Prods., Inc. v. Agric. Ass'ns, 3 F.3d 1289, 1291-92 (9th Cir. 1993)).

In general, the Eleventh Amendment prevents private parties from suing states absent a valid abrogation or express waiver of that right. Hibbs v. Dep't of Hum. Res., 273 F.3d 844, 850 (9th Cir. 2001). Although the Ninth Circuit has held that the assertion of Eleventh Amendment immunity is an affirmative defense in ITSI T.V. Prod., Inc. v. Agric. Ass'ns, Plaintiffs misapply ITSI. The court in ITSI addressed whether those defendants could prove they qualified as “arms of the state.” ITSI, 3 F.3d at 1292. If they could not, then those defendants would not be afforded the protections of the Eleventh Amendment. See id. 1293-94. The court held that “[i]n general, a claim of Eleventh Amendment immunity will occasion serious dispute only where a relatively complex institutional arrangement makes it unclear whether a given entity ought to be treated as an arm of the state.” Id. at 1292.

There is no such dispute in this case. The Ninth Circuit has expressly held that the Eleventh Amendment applies to state agencies. Hibbs, 273 F.3d at 850. CAL FIRE and CalHR are, based on Plaintiffs' own allegations, state agencies. Compl. ¶¶ 11-12. Furthermore, a state must either voluntarily invoke a federal court's jurisdiction or make a “clear declaration” that it intends to submit itself to federal jurisdiction to waive its Eleventh Amendment rights. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999); see also Port Auth. Trans-Hudson Corp. v. Fenney, 495 U.S. 299, 305 (1990). Not only has the state not made a clear declaration of waiver; it asserts the opposite. See Mot. at 12-13.

Accordingly, the Eleventh Amendment bars the state constitutional privacy claim against the state agency Defendants.

2. Ex Parte Young Does Not Apply to the State Officers

Defendants further assert that the Eleventh Amendment immunize...