Donovan v. Vance

• Court: U.S. District Court — District of Washington
• Writing for the Court: THOMAS O. RICE, United States District Judge
• Citation: Donovan v. Vance, 576 F.Supp.3d 816 (E.D. Wash. 2021)
• Decision Date: 17 December 2021
• Docket Number: NO. 4:21-CV-5148-TOR
• Parties: Hanford Security Police Officers David G. DONOVAN and Christopher J. Hall, United States Department of Energy employee Stephen C. Persons, Safety Bases Compliance Officer Thomas R. Ardamica, et al., Plaintiffs, v. Brian VANCE as Manager of the United States Department of Energy Hanford Site, Valerie McCain as Vit Plant Project Director, Scott Sax Bechtel as President and Project Manager of Central Plateau Cleanup Company, Robert Wilkinson as President and Program Manager of Hanford Mission Integrated Solutions, LLC, Don Hardy as Manager of Hanford Laboratories Management and Integration 222-S Laboratory Manager, Hiram Seth Whitmer as President and Program Manager, HPM Corporation, Steven Ashby as Laboratory Director, Pacific Northwest National Laboratory, John Eschenberg as President and Chief Executive Officer of Washington River Protection Solutions, Joseph R. Biden, President of the United States of America, Defendants.

576 F.Supp.3d 816

Hanford Security Police Officers David G. DONOVAN and Christopher J. Hall, United States Department of Energy employee Stephen C. Persons, Safety Bases Compliance Officer Thomas R. Ardamica, et al., Plaintiffs,

v.Brian VANCE as Manager of the United States Department of Energy Hanford Site, Valerie McCain as Vit Plant Project Director, Scott Sax Bechtel as President and Project Manager of Central Plateau Cleanup Company, Robert Wilkinson as President and Program Manager of Hanford Mission Integrated Solutions, LLC, Don Hardy as Manager of Hanford Laboratories Management and Integration 222-S Laboratory Manager, Hiram Seth Whitmer as President and Program Manager, HPM Corporation, Steven Ashby as Laboratory Director, Pacific Northwest National Laboratory, John Eschenberg as President and Chief Executive Officer of Washington River Protection Solutions, Joseph R. Biden, President of the United States of America, Defendants.

NO. 4:21-CV-5148-TOR

United States District Court, E.D. Washington.

Signed December 17, 2021

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.

Kevin C. Baumgardner, Thomas J. Bone, Corr Cronin LLP, Seattle, WA, for Defendant Valerie McCain.

Mark Nelson Bartlett, Arthur A. Simpson, Sarah Cox, Davis Wright Tremaine LLP, Seattle, WA, for Defendants Scott Sax, Robert Wilkinson, Don Hardy, Hiram Seth Whitmer, Steven Ashby, John Eschenberg.

ORDER DENYING PLAINTIFFS’ MOTION FOR DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, AND A PRELIMINARY INJUNCTION

THOMAS O. RICE, United States District Judge

BEFORE THE COURT is Plaintiffs’ Motion for Declaratory Relief, Temporary Restraining Order, and a Preliminary Injunction (ECF No. 11). This matter was submitted for consideration with telephonic oral argument on December 17, 2021. Nathan J. Arnold and Simon Peter Serrano appeared on behalf of Plaintiffs. Molly M.S. Smith and John T. Drake appeared on behalf of Federal Defendants. Mark N. Bartlett and Kevin C. Baumgardner appeared on behalf of Contractor Defendants. The Court has reviewed the record and files herein, considered the parties’ oral arguments, and is fully informed. For the reasons discussed below, Plaintiffs’ Motion for Declaratory Relief, Temporary Restraining Order, and a Preliminary Injunction (ECF No. 11) is DENIED .

PROCEDURAL BACKGROUND

This matter relates to President Biden's Executive Orders issued on September 9, 2021. As an initial matter, the Court notes the present motion and the operative Complaint are riddled with procedural and substantive deficiencies, which is curious given Plaintiffs’ counsels’ recent experience in this Court. In October 2021, one of Plaintiffs’ counsels, Nathan J. Arnold, filed a similar action and motion with the Court, challenging the Washington State vaccine mandates. See Bacon et al. v. Woodard et al. , 2:21-CV-0296-TOR, ECF Nos. 1, 2. The Court issued a detailed Order denying the motion on November 8, 2021, ten days before the present action was filed, outlining the legal and factual deficiencies in Mr. Arnold's motion. Bacon , 2:21-CV-0296-TOR, ECF No. 63. Oddly, Mr. Arnold and his co-counsel, Simon Peter Serrano, have now filed a nearly identical motion in this matter but have failed to correct any of the legal and factual inadequacies that proved fatal to the motion in Bacon. Compare ECF No. 11 with Bacon , 2:21-CV-0296-TOR, ECF No. 2. When asked by the Court during oral argument whether Mr. Serrano had read the Order from Bacon , Mr. Serrano acknowledged he had "looked at it," but it is clear from the present briefing that he did not look at it closely enough.

Next, the Court notes Plaintiffs’ Complaint is improperly captioned pursuant to Rule 10(a); Plaintiffs may not generally refer to the parties using "et al." until all parties have been named in the pleadings. Fed. R. Civ. P. 10(a). Additionally, while Plaintiffs name nine defendants from whom Plaintiffs seek relief, seven of those defendants ("Contractor Defendants") are improper defendants for the type of claims raised in this action. Those individuals, named in their official capacities, are private employees of private companies, which did not, and could not, promulgate the challenged Executive Orders. Moreover, those seven private individuals do not employ Plaintiffs; Plaintiffs are employed by private companies, which are not named as defendants. In any event, private employers cannot be liable for constitutional violations. At oral argument, the Court indicated the seven private defendants were subject to dismissal but would wait for briefing on the issue before making a ruling.

Plaintiffs also identify Brian Vance and President Biden, both acting in their official capacities, as defendants ("Federal Defendants"). However, Plaintiffs do not state a claim for relief against Defendant Vance. Consequently, the only defendant from whom Plaintiffs may seek relief is President Biden, and even then, Plaintiffs may only seek injunctive relief against the Executive Orders, not President Biden himself. Rosebud Sioux Tribe v. Trump , 428 F. Supp. 3d 282, 291 (D. Mont. 2019) (citing Franklin v. Massachusetts , 505 U.S. 788, 802–03, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (plurality)).

In any event, Plaintiffs’ attempts at injunctive relief fall woefully short, just as they did in Mr. Arnold's prior case before this Court. See Bacon , 2:21-CV-0296-TOR, ECF No. 63. Because the claims raised in the present motion are nearly identical to those raised in Bacon , for judicial economy, the Court will incorporate by reference its reasoning from Bacon in this Order. Finally, the Court indicated at oral argument it would entertain motions for Rule 11 sanctions due to the egregious deficiencies in this matter.

FACTS

There are 292 purported Plaintiffs in this action, all but seven of whom are employed by several private companies holding contracts with the federal government to carry out various duties related to the Hanford nuclear site in Richland, Washington. ECF Nos. 41 at 7; 44 at 3. The remaining seven Plaintiffs are employed by the Department of Energy ("DOE"), and also work at the Hanford site. ECF No. 41 at 9. Plaintiffs oppose the vaccination requirements being imposed by their employers pursuant to Executive Orders 14042 and 14043 ("Executive Orders").

The Executive Orders were issued on September 9, 2021. ECF No. 41 at 6. Executive Order 14043 requires all federal employees to be fully vaccinated; the Safer Federal Workforce Task Force (the "Task Force") issued guidance clarifying the deadline for federal employees to be fully vaccinated was November 22, 2021, unless they obtained an exemption. Id. Executive Order 14042 essentially requires employers who contract with the federal government to ensure their employees are fully vaccinated. ECF No. 44 at 8–9. This is achieved by requiring federal departments and agencies to introduce new contractual clauses that require covered contractors and subcontractors to comply with the guidance provided by the Task Force. Id. The Task Force issued guidance on September 24, 2021 stating that covered contractor employees who did not receive an exemption needed to be fully vaccinated by December 8, 2021. Id. at 9. The deadline for compliance is now January 18, 2022. Id. at 10.

Pursuant to Executive Order 14042, DOE modified its contracts, including the contracts held by the private entities that employ Plaintiffs. Id. at 12–18. Those private entities then adopted processes through which employees could seek vaccination exemptions and accommodations. Id. Some Plaintiffs have completed the process, some are still going through the process, and others have not applied at all. ECF Nos. 1 at 4–41, ¶¶ 16–308; 41 at 9; 44 at 12–18.

Plaintiffs filed the present motion on November 19, 2021, seeking injunctive relief. ECF No. 11. Contractor Defendants and Federal Defendants (collectively, "Defendants") oppose the motion, primarily because Plaintiffs’ claims are not yet ripe. ECF Nos. 41 at 8; 44 at 27.

DISCUSSION

I. Judicial Notice

In support of their opposition to Plaintiffs’ motion, Contractor Defendants request this Court take judicial notice of several public records relating to the challenged Executive Orders. ECF No. 54. A district court may take judicial of "a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). To that end, courts may take judicial notice of court filings and other matters of public record, including government documents available from reliable sources on the internet. Cross Culture Christian Ctr. v. Newsom , 445 F. Supp. 3d 758, 764 (E.D. Cal. 2020) (internal quotations and citations omitted).

The documents submitted by Contractor Defendants are government notices and records that are publicly accessible from reliable sources on the internet and are not reasonably subject dispute. The Court finds the documents are properly subject to judicial notice.

II. Legal Standard—Temporary Restraining Order

Pursuant to Federal Rule of Civil Procedure 65, a district court may grant a temporary restraining order (TRO) to prevent "immediate and irreparable injury." Fed. R. Civ. P. 65(b)(1)(A). The analysis for granting a temporary restraining order is "substantially identical" to that for a preliminary injunction. Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001). It "is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

To obtain this relief, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable injury in the absence of preliminary relief; (3) that...