Opinion
21-cv-00343-DKW-RT
10-22-2021
KAIMI K. PELEKAI, et al., Plaintiffs, v. STATE OF HAWAI‘I, et al., Defendants.
ORDER (1) GRANTING DEFENDANTS' MOTIONS TO DISMISS, (2) DENYING AS MOOT PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND (3) DISMISSING THE COMPLAINT WITHOUT PREJUDICE
Derrick K. Watson United States District Judge
When filing this lawsuit on August 13, 2021, three days before the initial effective date of certain State and County-wide policies that were alleged to require the “forcible administration” of a vaccine against COVID-19, Plaintiffs alleged that the policies were pre-empted by federal law. Plaintiffs further alleged that the policies violated their constitutional right to the free exercise of religion by imposing “burdensome and equally-offensive requirements as a condition of employment….”
Roughly two months later, if Plaintiffs' allegations are nothing else, they are outdated. Most important, at least with respect to the 12 Plaintiffs currently before the Court, none has been required or “forced” to take a COVID-19 vaccination. And none will be. Instead, the challenged State policy allows an employee to forego vaccination completely and opt to undergo testing instead-an approach Plaintiffs commend. That State policy is likewise the policy of the County of Maui. As for Honolulu, the relevant Plaintiffs also need not be vaccinated, as they have all been granted a religious exemption from doing so.
In other words, none of the Plaintiffs currently before the Court has been injured by the policies they challenge, at least not based upon the allegations and arguments they have made to-date. Therefore, as more fully set forth below, the Court finds all of their claims to be moot, GRANTS the pending motions to dismiss on that basis, and DISMISSES the Complaint WITHOUT PREJUDICE. The Court further DENIES the pending motion for injunctive relief as moot.
PROCEDURAL BACKGROUND
On August 13, 2021, Plaintiffs, 10 employees of the City and County of Honolulu (Honolulu) and 2 employees of the County of Maui (Maui), filed a Complaint, asserting 14 causes of action challenging (i) an August 5, 2021 Emergency Proclamation Related to the COVID-19 Response by Governor David Ige (the State Vaccine Policy), and (ii) an August 10, 2021 Directive from Mayor Rick Blangiardi (the Honolulu Vaccine Policy, and, collectively, the Vaccine Policies). Compl., Dkt. No. 1. Plaintiffs claimed to have brought this action “on behalf of all other similarly situated persons[, ]” specifically, “all current and future first responders on the Islands of Oahu and Maui subjected to the current [Vaccine Policies].” Id. at ¶¶ 28-29. The Complaint named as defendants the State of Hawai‘i (State), Governor David Ige (Governor), Honolulu, Honolulu Mayor Rick Blangiardi (Mayor Blangiardi), Maui, Maui Mayor Michael Victorino (Mayor Victorino), and Secretary Xavier Bacerra (Secretary) of the U.S. Department of Health and Human Services (HHS) (collectively, Defendants).
The 14 causes of action in the Complaint are as follows: (1) federal preemption because the Vaccine Policies “require” Plaintiffs to be vaccinated “against their will”; (2) declaratory relief that the Vaccine Policies violate the “laws of nations”; (3) violation of 21 U.S.C. Section 360bbb-3(e)(1)(A)(ii) because COVID-19 vaccines are “investigational” products under Emergency Use Authorization (EUA) and, thus, Plaintiffs must “consent” to their administration; (4) violation of substantive due process because of the “forcible administration” of the COVID-19 vaccines; (5) violation of procedural due process because the COVID-19 vaccines are “experimental”; (6) violation of “international law” because the COVID-19 vaccines are “nonconsensual” and “experimental”; (7) violation of equal protection because vaccinated employees are not subject to testing; (8) violation of the Fifth Amendment right to bodily integrity because “[t]here is reason to believe that some courts would find COVID vaccine mandates inconsistent” with U.S. Supreme Court precedent in Jacobson v. Massachusetts, 197 U.S. 11 (1905); (9) violation of substantive due process because Plaintiffs have been deprived of their right to direct their personal medical care; (10) violation of equal protection because vaccinated and unvaccinated individuals are “arguably indistinguishable”; (11) violation of 21 U.S.C. Section 360bbb-3 (Section 360bbb-3) because polymerase chain reaction (PCR) tests are “investigational” under an EUA and, thus, Plaintiffs must “consent” to their use; (12) violation of Section 360bbb-3 because the Vaccine Policies do not allow Plaintiffs the option to refuse PCR testing; (13) violation of the Fourth Amendment right against unreasonable searches and seizures because the Vaccine Policies are a “mandatory surveillance testing program”; and (14) violation of the First Amendment right to the free exercise of religion because the Vaccine Policies impose “burdensome and equally-offensive requirements as a condition of employment….” Plaintiffs seek declaratory and injunctive relief with respect to the Vaccine Policies. Compl. at 59-60. At the same time, Plaintiffs also filed a motion for temporary restraining order and preliminary injunction (TRO motion). Dkt. No. 2. Therein, Plaintiffs sought temporary and preliminary injunctive relief prohibiting enforcement of the Vaccine Policies.
The Court set a briefing schedule and hearing date of September 8, 2021 on the TRO motion. Dkt. No. 7. One business day before the scheduled filing of Defendants' response to the TRO motion, Plaintiffs filed a “supplemental” brief in support of the TRO motion, along with numerous exhibits and declarations. Dkt. No. 15. Therein, Plaintiffs reiterated that the Vaccine Policies violated, and were preempted by, federal law. Dkt. No. 15-2 at 1-15. Plaintiffs also, for the first time, made arguments and allegations not in the Complaint related to the Vaccine Policies and their impact on Plaintiffs' religious beliefs. Id. at 15-20. In light of the timing and unauthorized nature of this “supplemental” filing, the Court, while accepting the same for purposes of a complete record, reset the briefing schedule on the TRO motion and vacated the September 8, 2021 hearing date, noting that the hearing would be re-scheduled upon completion of briefing. Dkt. No. 16.
Thereafter, the Court received oppositions to the TRO motion from the State, Honolulu, and the Secretary, motions to dismiss from the same Defendants, and motions for joinder from Maui and Honolulu. Dkt. Nos. 23, 25-31, 37-38. In summary, the Defendants oppose any injunctive relief and, instead, argue that this case should be dismissed. Among many other arguments in that regard, Honolulu asserts that all 10 of the Plaintiffs employed by it have been granted a religious exemption from the Honolulu Vaccine Policy and, thus, are not required to take a COVID-19 vaccine. Dkt. No. 30-1 at 5. Honolulu argues, therefore, that Plaintiffs' claims are moot. Plaintiffs then filed three replies in support of the TRO motion, each responding to one of the oppositions filed by Defendants. Dkt. Nos. 39-41. Plaintiffs have also filed three oppositions to the pending motions to dismiss. Dkt. Nos. 44-46. In opposing Honolulu's motion to dismiss, Plaintiffs argue, inter alia, that their case is not moot because they represent a “class” “with hundreds of Plaintiffs”, the Honolulu Vaccine Policy is “capable of repetition yet evading review[, ]” and the Honolulu Vaccine Policy still contains “offen[sive] language” that this Court can remedy. Dkt. No. 45-1 at 3-4. The Court has also received Defendants' replies in support of each of the motions to dismiss. Dkt. Nos. 54, 58-59.
With briefing complete on the TRO motion, the Court set the same for hearing on October 15, 2021. Dkt. No. 49. The motions to dismiss were also subsequently set for hearing on that date. Dkt. No. 50.
On October 14, 2021, the day before the scheduled hearing, Plaintiffs filed another “supplement” in support of the TRO motion. Dkt. No. 64. Plaintiffs also filed a motion for leave to file a first amended complaint. Dkt. No. 63. Among other things, Plaintiffs assert that they wish to file an amended complaint in order to “add subsequent events[, ]” such as the federal government providing full approval and EUA to vaccines manufactured by Pfizer. Dkt. No. 63-2 at 2. Plaintiffs also state that they wish to add “[m]any other” individuals as named plaintiffs in this case-several hundred individuals that Plaintiffs assert have not yet received vaccine exemptions on religious grounds. Id. at 2, 4.
On October 15, 2021, a hearing was held on the TRO motion and the motions to dismiss. Dkt. No. 65. At the conclusion of the same, the Court took the pending motions under advisement. This Order now follows.
STANDARD OF REVIEW
I. Motions to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move for dismissal due to a lack of subject matter jurisdiction. “[S]tanding and mootness both pertain to a federal court's subject matter jurisdiction under Article III….” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A Rule 12(b)(1) motion can consist of a facial or factual attack on jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” In the latter scenario, a court “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Id.
When a complaint is subject to dismissal, leave to amend should be given when “justice so requires.” Fed.R.Civ.P. 15(a)(2). Justice does not require leave to amend when (1) it would prejudice an opposing party, (2) it is sought in bad faith, (3) it would produce an undue delay in litigation, (4) it would be futile, or (5) there has been repeated failure to cure a deficiency. Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
II. Injunctive Relief
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). When a party “has not shown any chance of success on the merits, no further determination of irreparable harm or balancing of hardships is necessary.” Global Horizons, Inc. v. U.S. Dep't of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007). Further, a plaintiff must show that “irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (emphasis in original); Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011) (“An injunction will not issue if the person or entity seeking injunctive relief shows a mere possibility of some remote future injury or a conjectural or hypothetical injury[.]”) (quotations and citations omitted).
In addition, before issuing an injunction, a federal court must satisfy itself that subject matter jurisdiction exists. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (explaining that subject matter jurisdiction “involves a court's power to hear a case” and a court has an independent obligation to determine whether such jurisdiction exists) (quotation and citation omitted); Church of Scientology of Cal. v. United States, 920 F.2d 1481, 1490-91 (9th Cir. 1990) (affirming a district court's decision to dissolve a temporary restraining order when the court lacked subject matter jurisdiction); Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim….”).
DISCUSSION
As it must, the Court first addresses whether subject matter jurisdiction exists in this case. Federal courts lack subject matter jurisdiction when, inter alia, the case or controversy is moot. See White, 227 F.3d at 1242. A case is moot “when interim relief or events have deprived the court of the ability to redress the party's injuries.” Am. Cas. Co. of Reading, Pa. v. Baker, 22 F.3d 880, 896 (9th Cir. 1994) (quotation omitted).
Here, Defendants argue that Plaintiffs' claims are moot for various reasons. First, Defendants assert that Plaintiffs are not required to receive a COVID-19 vaccine because they have been granted exemptions from doing so. See, e.g., Dkt. No. 30-1 at 5. Second, Defendants contend that Plaintiffs need not receive a vaccine subject to an EUA because the U.S. Food and Drug Administration (FDA) has granted full approval to the COVID-19 vaccine from Pfizer-BioNTech (Pfizer Vaccine). See, e.g., Dkt. No. 23-1 at 17.
As explained more fully below, the Court agrees that all of Plaintiffs' claims are moot due to intervening events, the arguments of Plaintiffs in their briefing, and/or the fact that it is now clear that some of the Plaintiffs were never subject to an injury in the first place.
As an initial matter, it is important to understand the numerous claims Plaintiffs bring in the Complaint. Although 14 in number, those claims in toto essentially challenge (1) the alleged “forc[ed]” vaccination of Plaintiffs, (2) the use of vaccines under an EUA, and (3) the use of COVID-19 testing under an EUA. None of those alleged injuries now exist, to the extent they ever did, or Plaintiffs no longer contend that they are injuries at all.
First, and most importantly, none of the Plaintiffs is being forced to receive a COVID-19 vaccine, whether under an EUA or not. In the case of the two Maui Plaintiffs, they were never required to receive a vaccination under the State Vaccine Policy. Rather, that policy, adopted by Maui, allows an individual to opt out of vaccination and elect to be tested for the coronavirus instead. See Compl. at ¶ 33. As for the 10 Plaintiffs employed by Honolulu, it is undisputed that all of them have received religious exemptions from the Honolulu Vaccine Policy. See Dkt. No. 45-1 at 3. In this light, none of the Plaintiffs is being forced to receive a COVID-19 vaccination. See Wade v. Univ. of Conn. Bd. of Trs., 2021 WL 3616035, at *7-8 (D. Conn. Aug. 16, 2021) (finding moot the claims of students who had sought and been granted exemptions from a COVID-19 vaccination requirement). This affects Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, and Fourteen.
Second, subsequent to filing the Complaint, Plaintiffs have taken the consistent position that testing for the coronavirus is to be applauded. In the Complaint, Plaintiffs alleged that testing violated certain statutory or constitutional rights because testing was experimental and/or impinged on their ability to make personal medical decisions. See e.g., Compl. at ¶¶ 156, 173, 175, 180 From the moment of their responsive briefing, though, Plaintiffs have taken a very different tact. Notably, Plaintiffs now argue that “rapid testing is the best and most effective method to combat outbreaks of COVID-19 because it can detect when someone is infected (i.e., contagious).” Dkt. No. 41 at 12; see also, Dkt. No. 45-1 at 16 (arguing that testing is a “[r]easonable alternative[]” to vaccination). Plaintiffs' counsel confirmed this new position at the October 15, 2021 hearing by lauding Maui for having a testing alternative to vaccination. See 10/15/21 Hearing Transcript at 19:25-20:8, Dkt. No. 66. These arguments are incompatible with the allegations in the Complaint, which the Court therefore finds Plaintiffs to have abandoned. In other words, Plaintiffs no longer assert any claim premised upon or challenging testing. Cf. Digby Adler Group, LLC v. Mercedes-Benz U.S.A., LLC, 2015 WL 5138080, at *2 (N.D. Cal. Sep. 1, 2015) (finding the failure to respond to an argument for dismissal of a claim to be an “abandonment” of the claim). This affects Claims Seven, Nine, Ten, Eleven, Twelve, and Thirteen.
The Court finds none of Plaintiffs' arguments to the contrary on the issue of mootness to be persuasive. Plaintiffs first argue that their claims are not moot because this is a “class action with hundreds of Plaintiffs….” Dkt. No. 45-1 at 3. This case, however, at least currently, is neither a class action nor does it involve hundreds of plaintiffs. Instead, while the Complaint may contain class allegations, no certification motion has been filed, and no class has been certified or even evaluated by the Court pursuant to Federal Rule of Civil Procedure 23. In other words, this argument from Plaintiffs assumes a world that does not currently exist in this case and, thus, does nothing to suggest their claims are not moot.
Next, Plaintiffs argue that the Honolulu Vaccine Policy is “capable of repetition yet evading review.” Dkt. No. 45-1 at 3. A policy is “capable of repetition, yet evading review” when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quotation omitted). Here, neither condition exists. First, the duration of the Honolulu Vaccine Policy is not too short by any measure, given that, from the document Plaintiffs have provided, there does not appear to be any date for its cessation or expiration. See Dkt. No. 15-7. In other words, an individual could challenge the Honolulu Vaccine Policy at any time, including if an exemption was revoked. Second, Plaintiffs have provided no expectation that they will be subject to the same action again. Instead, they simply regurgitate, without any explanation, that the Honolulu Vaccine Policy is “capable of repetition yet evading review.” See Dkt. No. 45-1 at 3. Parroting, however, does not make it so. As explained above, the Honolulu Vaccine Policy is not evading any review, given that it can be challenged at any time.
Next, Plaintiffs argue that the Pfizer Vaccine that has been fully approved by the FDA is not available and, thus, they are still required to use an “experimental” vaccine under an EUA. Dkt. No. 44-2 at 2-4; Dkt. No. 15-2 at 15. As an initial matter, this argument does nothing to dispel the undisputed fact that none of the Plaintiffs is required to receive a vaccine, irrespective of its approval or “experimental” status. Even on its own terms, however, as the Secretary explains, Dkt. No. 23-1 at 17-19, Plaintiffs ignore the same documents they rely upon in making this argument. Notably, in an August 23, 2021 letter to Pfizer, the FDA states that both the vaccine subject to an EUA and the fully approved version are of the “same formulation” and can be used “interchangeably” to provide a vaccination series “without presenting any safety or effectiveness concerns.” Dkt. No. 15-12 at 2 & n.8. In other words, according to the FDA, the EUA vaccine is no more “experimental” than its fully approved analogue. In any event, because Plaintiffs are not required to receive a COVID-19 vaccine, the type of vaccine they do not have to receive is of no import.
Finally, Plaintiffs argue that, even if they are exempt from any vaccine requirement under the Honolulu Vaccine Policy, the policy still contains “offen[sive] language” that the Court can order stricken. Dkt. No. 45-1 at 3. Specifically, Plaintiffs appear to challenge the following language in the Honolulu Vaccine Policy: “I understand that a request for a religious exemption based on objections to specific vaccinations will not be granted.” Dkt. No. 15-7 at 6 (emphasis in original); see Dkt. No. 45-1 at 1. Plaintiffs contend that this language is unconstitutional because “[d]isallowing objections to a specific vaccine nullify and neuters [sic] Plaintiffs' sincerely held religious beliefs to object to a specific vaccine.” Dkt. No. 45-1 at 1. Plaintiffs further assert that their objection to the “specific” vaccines here is that they were all developed using aborted fetal cell lines that run counter to their religious beliefs. Id. at 7.
This, however, is an argument searching for a problem. Nothing in the Honolulu Vaccine Policy prevents Plaintiffs from objecting to being vaccinated on the ground that they oppose, on religious grounds, vaccines that have been developed using aborted fetal cell lines. This is because that objection is a general one: specifically, a general objection to the use of vaccines developed with aborted fetal cell lines. At most, the Honolulu Vaccine Policy may not allow an employee to make the following objection: “I object to the Pfizer vaccine on religious grounds because it was developed using aborted fetal cell lines.” The policy, however, does not prohibit an employee from making the following objection: “I object to all vaccines that have been developed using aborted fetal cell lines on religious grounds.” The latter is not an objection to a specific vaccine, is not prohibited by Honolulu's policy, and is the objection Plaintiffs themselves claim to want to make. In this light, contrary to Plaintiffs' assertions, there is no “offending” language for the Court to strike from the Honolulu Vaccine Policy and, thus, their claims remain moot for the reasons discussed herein.
Accordingly, the Court finds that all of the claims raised in the Complaint are moot and DISMISSES them on that basis. Dismissal is without prejudice.
CONCLUSION
To the extent set forth herein, the motions to dismiss, Dkt. Nos. 23, 26, 30, are GRANTED. Dismissal is WITHOUT PREJUDICE. The motions for joinder, Dkt. Nos. 29, 37, 38, are GRANTED. Because all claims have been dismissed, the motion for temporary restraining order and preliminary injunction, Dkt. No. 2, is DENIED AS MOOT.
IT IS SO ORDERED.