DAVID DONOVAN, ET AL V. BRIAN VANCE, No. 22-35474 (9th Cir. 2023)
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Plaintiffs, a group of Federal contractor employees and Federal employees working for the Department of Energy, challenged two Executive Orders, Executive Orders 14,042 and 14,043 (EOs), issued in September 2021. 1 Those EOs mandated COVID-19 vaccination for Federal contractor employees and Federal employees, respectively. They also provided for legally required medical or religious exemptions. Plaintiffs challenged the EOs as ultra vires exercises of presidential power in violation of the Federal Property and Administrative Services Act (Procurement Act), the Office of Federal Procurement Policy Act (Procurement Policy Act), the Administrative Procedure Act (APA), the Religious Freedom and Restoration Act (RFRA), the major questions doctrine, and general constitutional federalism constraints. Plaintiffs sought injunctive and declaratory relief to address their allegedly “imminent and wrongful terminations” for failure to comply with the vaccination requirements. The district court held that Plaintiffs who had submitted religious and medical exemptions but who had not yet completed the exemption request process did not have claims ripe for adjudication. The district court then dismissed the operative Second Amended Complaint with prejudice for failure to state a claim and without leave to amend.
The Ninth Circuit affirmed in part and dismissed as moot in part. The panel concluded that the case was moot as to all non-RFRA claims. The vaccine mandate exemption processes that the Plaintiffs challenged were premised on the revoked EOs. The panel held that it could not provide relief from EOs and exemption processes that no longer exist. Accordingly, no live controversy remained between the parties. The panel further concluded that Plaintiffs’ claims for damages under RFRA were precluded by sovereign immunity.
Court Description: Executive Orders / Sovereign Immunity / Mootness The panel affirmed in part and dismissed as moot in part an action brought by a group of Federal contractor employees and Federal employees working for the Department of Energy, challenging Executive Orders 14,042 and 14,043 (EOs), which mandated COVID-19 vaccinations with medical and religious exemptions, and remanded.
Plaintiffs challenged the EOs as ultra vires exercises of presidential power in violation of the Federal Property and Administrative Services Act, the Office of Federal Procurement Policy Act, the Administrative Procedure Act, the Religious Freedom and Restoration Act (RFRA), the * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
major questions doctrine, and general constitutional federalism constraints. The district court denied Plaintiffs’ motion for a temporary restraining order, a preliminary injunction, and declaratory relief. The district court then dismissed the operative Second Amended Complaint with prejudice for failure to state a claim and without leave to amend.
While this appeal was pending, the challenged EOs were revoked by Executive Order 14,099, effective May 12, 2023.
The panel concluded that the case was moot as to all non- RFRA claims. The vaccine mandate exemption processes that the Plaintiffs challenged were premised on the revoked EOs. The panel held that it could not provide relief from EOs and exemption processes that no longer exist. Accordingly, no live controversy remained between the parties.
The panel further concluded that Plaintiffs’ claims for damages under RFRA were precluded by sovereign immunity. The government stated that it “has not waived sovereign immunity for monetary damages under RFRA or any of plaintiffs’ statutory causes of action.” Because RFRA did not waive sovereign immunity, and the government had not otherwise done so, the panel affirmed the district court’s dismissal of Plaintiffs’ RFRA claims for lack of jurisdiction on sovereign immunity grounds.
Finally, the panel remanded to the district court with instructions to vacate the portion of the orders on appeal addressing all non-RFRA claims.
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