Oklahoma v. Biden

• Decision Date: 28 December 2021
• Docket Number: Case No. CIV-21-1136-F
• Citation: 577 F.Supp.3d 1245
• Parties: State of OKLAHOMA, et al., Plaintiffs, v. Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

577 F.Supp.3d 1245

State of OKLAHOMA, et al., Plaintiffs,

v.Joseph R. BIDEN, Jr., in his official capacity as President of the United States, et al., Defendants.

Case No. CIV-21-1136-F

United States District Court, W.D. Oklahoma.

Signed December 28, 2021

Mithun S. Mansinghani, Attorney General's Ofc., Oklahoma City, OK, Brian J. Field, Pro Hac Vice, Gene C. Schaerr, Pro Hac Vice, H. Christopher Bartolomucci, Pro Hac Vice, Schaerr Jaffe LLP, Washington, DC, Riddhi Dasgupta, Pro Hac Vice, Schaerr Jaffe LLP, Ellicott City, MD, for Plaintiffs.

Robert C. Merritt, Steven A. Myers, Zachary A. Avallone, US Dept of Justice Civil Division, Washington, DC, for Defendants.

ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

STEPHEN P. FRIOT, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

The Governor of Oklahoma and his co-plaintiffs seek, in this action, to enjoin the implementation of Department of Defense directives mandating the vaccination of members of the Oklahoma National Guard and the Oklahoma Air National Guard against COVID-19.¹

The vaccine mandate to which the Governor objects is the one–in addition to the nine that already apply to all service members–intended to protect service members from the virus which has, in less than two years, killed more Americans than have been killed in action in all of the wars the United States has ever fought.² The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same. The claims asserted by the Governor and his co-plaintiffs are without merit. The motion for preliminary injunction will be denied.

This action was filed on December 2, 2021, on behalf of the State of Oklahoma, Governor J. Kevin Stitt, Oklahoma Attorney General John M. O'Connor, and sixteen Oklahoma Air National Guard members who seek to proceed anonymously. A motion for temporary restraining order and preliminary injunction was filed on December 3, 2021. Doc. no. 9 (herein: motion). At a status and scheduling conference held on December 13, 2021, the court informed counsel that the issues presented by the motion would be addressed by way of consideration of entry of a preliminary injunction and not via the request for a temporary restraining order. Defendants have responded to the motion, doc. no. 37, and plaintiffs have replied.³ Doc. no. 39. The motion has been fully briefed and is ripe for determination. The dispositive facts are adequately established in the record. Consequently, an evidentiary hearing is not necessary.

As an initial matter, the court will note that the complaint, as filed on December 2, 2021 focused entirely on Executive Order 14043,⁴ which applies to federal civilian employees. The Executive Order does not apply to service members in the Guard or otherwise. An amended complaint, challenging–for the first time–the military vaccine mandate as applied to the Guard, was filed on December 27, 2021. Doc. no. 38. Plaintiffs’ Reply, also filed on December 27, 2021, addresses–for the first time–the statutory provisions which are decisive in this action, namely the statutes creating the Guard and providing for its governance. Plaintiffs also filed a motion for protective order on December 27, 2021, doc. no. 40, seeking authorization for the sixteen individual plaintiffs to proceed anonymously.

II. PRELIMINARY INJUNCTION STANDARD

A preliminary injunction is "the exception rather than the rule." United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989). Because it is "an extraordinary remedy, the right to relief must be clear and unequivocal." Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1261 (10th Cir. 2004) (internal quotation marks and citation omitted). To obtain a preliminary injunction, the movant bears the burden of establishing four factors: "(1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party's favor; and (4) the preliminary injunction is in the public interest." Republican Party of N. M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). Where the federal government is the opposing party, these last two factors merge. Nken v. Holder, 556 U.S. 418, 436, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (third factor described as "harm to the opposing party"). But where a movant fails to establish a likelihood of success on the merits, it is unnecessary to address the remaining requirements for a preliminary injunction. Warner v. Gross, 776 F.3d 721, 736 (10th Cir. 2015). For preliminary injunction purposes, the required showing on the "merits," includes "not only substantive theories but also establishment of jurisdiction." Electronic Privacy Info. Ctr. v. U. S. Dep't of Commerce, 928 F.3d 95, 104 (D.C. Cir. 2019) (internal quotation marks and citations omitted).

III. SUBJECT MATTER JURISDICTION

Before addressing the preliminary injunction factors, the court must resolve two issues which bear on its subject matter jurisdiction–the inclusion, as plaintiffs, of individuals who wish to proceed anonymously, and standing.

a. Anonymous individual plaintiffs.

The complaint and the amended complaint refer to sixteen individual Oklahoma Air National Guard members as plaintiffs. But those sixteen individuals are not named in those pleadings; they seek to proceed anonymously.

"The Federal Rules of Civil Procedure ‘make no provision for suits by persons using fictitious names or for anonymous plaintiffs.’ " United States ex rel. Little v. Triumph Gear Systems, Inc., 870 F.3d 1242, 1249 (10th Cir. 2017) (quoting Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) ). Indeed, Rule 10(a), Fed. R. Civ. P., requires "[t]he title of the complaint [to] name all the parties[.]" Although the Tenth Circuit has recognized that "[i]n certain limited circumstances," a plaintiff may be permitted by the district court to proceed anonymously, Gibbs, 886 F.2d at 1245, it has determined that the plaintiff must make a "request to the district court for permission to proceed anony-mously[.]" Id. Absent permission, the district court lacks "jurisdiction over the unnamed parties, as a case has not been commenced with respect to them." Id. (footnote omitted); see , W.N.J. v. Yocom, 257 F.3d 1171, 1172-73 (10th Cir. 2001) (dismissing an appeal because the district court never had jurisdiction over plaintiffs who had failed to request permission from district court before proceeding anonymously).

In the case at bar, the sixteen unnamed plaintiffs sought permission yesterday–nearly a month after this action was filed–to proceed anonymously. Defendants will presumably respond to that motion within the time allotted by the local rules. The court will then either grant or deny permission to proceed anonymously. In the meantime, the court lacks jurisdiction to grant relief to the unnamed plaintiffs.

b. Standing.

" Article III of the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.’ " Dep't of Commerce v. New York (Census), ––– U.S. ––––, 139 S.Ct. 2551, 2565, 204 L.Ed.2d 978 (2019). "For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue." Id. at 2565. "The doctrine of standing ‘limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong’ and ‘confines the federal courts to a properly judicial role.’ " Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ).

To have Article III standing, the plaintiff "must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc., 578 U.S. at 338, 136 S.Ct. 1540. An injury-in-fact is "an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks and citations omitted).

"[A]s the party invoking federal jurisdiction," the plaintiff "bears the burden of establishing these elements." Spokeo, 578 U.S. at 338, 136 S.Ct. 1540. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. Therefore, at the preliminary injunction stage, the plaintiff must make a "clear showing" of standing. Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ).

In addition to having Article III standing, a plaintiff must also have prudential standing. "Prudential standing is not jurisdictional in the same sense as Article III standing." Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007). Prudential standing consists of "a judicially-created set of principles that, like constitutional standing, places limits on the class of persons who may invoke the courts’ decisional and remedial powers." Bd. of County Comm'rs v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (quotation marks and citation omitted). Generally, there are three prudential-standing requirements: (1) "a plaintiff must assert his own rights, rather than those belonging to third parties;" (2) "the plaintiff's claim must not be a generalized grievance shared in substantially equal measure by all or a large class of citizens;" and (3) "a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional...