Mont. Med. Ass'n v. Knudsen
| Decision Date | 25 January 2022 |
| Docket Number | CV 21-108-M-DWM |
| Citation | 581 F.Supp.3d 1232 |
| Parties | MONTANA MEDICAL ASSOCIATION, et al., Plaintiffs, and Montana Nurses Association, Plaintiff-Intervenor, v. Austin KNUDSEN, et al., Defendants. |
| Court | U.S. District Court — District of Montana |
Justin K. Cole, Kathryn Mahe, Garlington Lohn & Robinson, PLLP, Missoula, MT, for Plaintiffs.
Raphael Graybill, Graybill Law Firm, PC, Great Falls, MT, for Plaintiff-Intervenor.
Alwyn Lansing, Brent Adam Mead, David M.S. Dewhirst, Christian B. Corrigan, Montana Department of Justice Attorney General's Office, Helena, MT, Emily E. Jones, Jones Law Firm, PLLC, Billings, MT, for Defendants Austin Knudsen, Laurie Esau.
This case challenges the recently enacted laws codified in Mont. Code Ann. §§ 49–2–312 and 49–2–313. These statutes catalogue Montana House Bill 702, which was passed in 2021. In a nutshell, § 49–2–312 prohibits persons and entities—with limited exceptions—from withholding goods, services, or employment "based on the person's vaccination1
status or whether the person has an immunity passport." Id. (emphasis added). "Vaccination status" refers to "an indication of whether a person has received one or more doses of a vaccine," while "immunity passport" refers to a form of record "indicating that a person is immune to a disease, either through vaccination or infection and recovery." § 49–2–312(5). School vaccination requirements remain, § 49–2–312(2), and "health care facilities," as defined under § 50–5–101, are permitted to "ask[ ] an employee to volunteer the employee's vaccination or immunization status" and may "implement reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune," § 49–2–312(3). The term "health care facilities" under § 49–2–312(3) "does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37." § 50–5–101(26)(b). Section 49–2–313 then exempts certain facilities from § 49–2–312 : licensed nursing homes, long-term care facilities, and assisted living facilities (collectively, "Exempted Facilities"). These facilities are exempt "during any period of time that compliance with [ § 49–2–312 ] would result in a violation of regulations or guidance by the centers for medicare and medicaid services or the centers for disease control and prevention."
In light of these statutes, multiple parties sued Austin Knudsen, in his official capacity as the Montana Attorney General, and Laurie Esau, in her official capacity as the Montana Commissioner of Labor and Industry (collectively "Defendants"). The "Institutional Plaintiffs" include Montana Medical Association ("Montana Medical"), Five Valleys Urology, PLLC ("Five Valleys"), Providence Health and Services ("Providence"), and Western Montana Clinic, PC. The "Individual Plaintiffs"—immunocompromised patients—include Pat Appleby, Mark Carpenter, Lois Fitzpatrick, Joel Peden, Diana Jo Page, Wallace L. Page, and Cheyenne Smith. The Montana Nurses Association ("the Nurses") were also given leave to intervene as Plaintiff-Intervenors, (the Institutional Plaintiffs, Individual Plaintiffs, and the Nurses are collectively referred to as "Plaintiffs"). The issues at this stage in the case concern the viability of Plaintiffs’ claims, not the merits of those claims.
Plaintiffs’ First Amended Complaint sets forth eight claims.2 The first four claims sound in federal preemption. Plaintiffs allege that § 49–2–312 violates an employers’ obligation under the Americans with Disabilities Act ("ADA")3 to make reasonable accommodations (Claim I) and prohibits compliance with the obligation under the ADA for public accommodations to provide equitable access to individuals with disabilities (Claim II). Plaintiffs further allege that § 49–2–312 violates the Occupational Safety and Health Act ("OSHA")4 because it prohibits employers from providing a workplace free from recognized hazards (Claim III) and prevents employers from developing plans to reduce the risk of COVID-19 transmission (Claim IV). Plaintiffs’ other four claims are constitutional challenges. Plaintiffs claim that § 49–2–312 violates the right to a clean and healthful environment and to seek health (Claim V) and the obligation to maintain and improve a clean and healthful environment (Claim VI) under the Montana Constitution. Plaintiffs also allege that § 49–2–312 violates equal protection rights under both the state and federal constitutions (Claims VII and VIII). Defendants seek to dismiss Plaintiffs’ claims. (Docs. 20, 29.)5 A hearing on Defendants’ motions was held on January 21, 2022.
On the surface, Defendants’ motions advance two primary arguments for dismissal: Plaintiffs lack standing and the Complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). But in making these arguments, Defendants misstate Plaintiffs’ asserted injuries,6 overstate Plaintiffs’ requested relief,7 and engage in argument via proof by assertion.8 Ultimately, the briefing throws into sharp relief the fact that the parties are divided over the efficacy of vaccines and the effect of such vaccines9 on healthcare employers, employees, and patients. But these disputes are grounded in the merits of this case and are beyond the scope of the present motions. For the reasons explained below, Plaintiffs have standing and, for the most part, have stated plausible claims for relief. Accordingly, Defendants’ motions to dismiss, (Docs. 20, 29), are denied as to all claims except for Plaintiffs’ Claim VI and the Institutional Plaintiffs’ Claim V, both of which involve claims under the Montana Constitution's clean and healthful environment provision.
Standing is a prerequisite to justiciability and "an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing challenges are subject to review under Federal Rule of Civil Procedure 12(b)(1). White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). To establish standing, a plaintiff must demonstrate: (1) the plaintiff suffered an injury in fact that is (2) causally connected and fairly traceable to the challenged conduct and (3) likely to be redressed by a favorable decision in court. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130. A plaintiff asserting associational standing must demonstrate the following additional criteria: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Ecological Rights Found. v. Pac. Lumber Co. , 230 F.3d 1141, 1147 (9th Cir. 2000) (quotation marks omitted). The first and second prong of the associational standing inquiry are constitutional, but the third prong is prudential. United Food & Comm. Workers Union Local 751 v. Brown , 517 U.S. 544, 555, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).
Plaintiffs bear the burden of establishing the three elements of standing. Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Nevertheless, there is a "general rule applicable to federal court suits with multiple plaintiffs ... that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others." Leonard v. Clark , 12 F.3d 885, 888 (9th Cir. 1993). Furthermore, a plaintiff's burden shifts depending on whether the defendant asserts a facial or a factual challenge. A facial attack "asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). Facial attacks are resolved under the Rule 12(b)(6) standard: a plaintiff's allegations are accepted as true and all reasonable inferences are drawn in their favor.
Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir. 2014). "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone , 373 F.3d at 1039.
Here, Defendants contest standing across the board.10 First, Defendants do not accept Plaintiffs’ allegations as true, indicating they challenge the factual underpinnings of the alleged subject matter jurisdiction. (See, e.g. , Doc. 21 at 15–17, 19–20.) However, as Plaintiffs note, "Defendants have not properly presented affidavits" in support of their arguments. (Doc. 23 at 10.) Without supporting evidence, the challenge is not a factual one. See Safe Air for Everyone , 373 F.3d at 1039. Second, Defendants suggest the Court may judicially notice certain materials, perhaps in an attempt to "present other evidence" in lieu of affidavits. See id. But the reference to judicial notice is imprecise and the material Defendants apparently wish to judicially note is inappropriate. "A high degree of indisputability is the essential prerequisite" of an adjudicative fact that may be judicially noticed. Fed. R. Evid. 201(a) advisory committee's notes on proposed rules. The very nature of this case demonstrates that the "facts" Defendants wish to be judicially noticed—essentially, that there is no meaningful difference in transmission risk of COVID-1911 between vaccinated and unvaccinated medical workers—are not "undisputed." Accordingly, these materials do not constitute sufficient "other evidence" to transmute Defendants’ motion to dismiss to a factual one. The standing challenge is therefore facial.
Next, the general rule recognized in Leonard applies. As a contextual matter, the rule in Leonard derives from the Supreme Court's decision in Carey v. Population Services, International , 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). In Carey , the diverse plai...
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