Robert et al v. Austin et al

Filing 48

ORDER granting #37 Motion to Dismiss for Failure to State a Claim, granting #37 Motion to Dismiss for Lack of Jurisdiction, denying #42 Motion for Leave, and denying #30 Motion for Preliminary Injunction. Judgment shall enter accordingly. Entered by Judge Raymond P. Moore on 1/11/2022. (cpear)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 21-cv-02228-RM-STV
DAN ROBERT, SSG, U.S. Army,
HOLLIE MULVIHILL, SSgt, U.S. Marine Corps, and other similarly situated individuals,
Plaintiffs,
v.
LLOYD AUSTIN, in his official capacity as Secretary of Defense, U.S. Department of Defense,
XAVIER BACERRA, in his official capacity as Secretary of the U.S. Department of Health
and Human Services, and
JANET WOODCOCK, in her official capacity as Acting Commissioner of the U.S. Food
and Drug Administration,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Before the Court are Plaintiffs’ Motion for Preliminary Injunction (ECF No. 30) and
Defendants’ Motion to Dismiss (ECF No. 36), which they have combined with their Opposition
to Plaintiffs’ Motion with the Court’s permission. Plaintiffs filed a Reply in support of their
Motion (ECF No. 43) and, belatedly, a separate Response to the Motion to Dismiss (ECF
No. 46). Defendants then filed a Reply (ECF No. 47) in support of their Motion. Also pending
is a Motion for Leave to File Amicus Curiae (ECF No. 42), filed by Pritish Vora, “an individual
concerned U.S. citizen” who is not an attorney. For the reasons below, the Court denies
Plaintiffs’ Motion, grants Defendants’ Motion, and denies the Motion for Leave.

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I.

LEGAL STANDARDS
A.

Preliminary Injunction

To obtain injunctive relief, a plaintiff must establish “(1) a substantial likelihood of
prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the
threatened injury outweighs the harm that the preliminary injunction may cause the opposing
party; and (4) that the injunction, if issued, will not adversely affect the public interest.” Diné
Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016)
(quotation omitted). The final two requirements merge when the government is the opposing
party. See Nken v. Holder, 556 U.S. 418, 435 (2009). An injunction is an extraordinary remedy,
and therefore the plaintiff must demonstrate a right to relief that is clear and unequivocal.
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). The fundamental purpose of
preliminary injunctive relief is to preserve the relative positions of the parties until a trial on the
merits can be held. Id.
B.

Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(1), a court may dismiss a complaint for “lack of
jurisdiction over the subject matter.” “The general rule is that subject matter jurisdiction may be
challenged by a party or raised sua sponte by the court at any point in the proceeding.”
McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). Although the burden
of establishing subject matter jurisdiction is on the party asserting jurisdiction, “[a] court lacking
jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent
that jurisdiction is lacking.” Smith v. Krieger, 643 F. Supp. 2d 1274, 1289 (D. Colo. 2009)
(quotation omitted).

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In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must accept as
true all well-pleaded factual allegations in the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox,
613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also id. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”). Conclusory
allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and
courts “are not bound to accept as true a legal conclusion couched as a factual allegation,”
Twombly, 550 U.S. at 555 (quotation omitted).
C.

Leave to File a Brief as Amicus Curiae

Participation as an amicus to brief and argue as a friend of the court is a privilege within
the sound discretion of the courts and is contingent on a finding that the proffered information of
amicus is timely, useful, or otherwise necessary to the administration of justice. See United
States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991).
II.

BACKGROUND
Plaintiffs are members of the military who were stationed in North Carolina when they

brought this action on behalf of themselves as well as all other similarly situated active-duty
National Guard and Reserve service members who are subject to Department of Defense
regulations and have been ordered by the Secretary of Defense, Defendant Austin, to take a
Covid-19 vaccine. (ECF No. 29 at 1-2.) As “documented survivors of Covid-19,” they assert
that have acquired immunity that is “at least as effective” as that achieved via vaccination, and
they seek temporary and permanent injunctive relief preventing their forced vaccination. (Id.

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at 2-3.) In addition to asserting class action allegations, the Amended Complaint asserts claims
for (1) violation of the Administrative Procedure Act, (2) violation of 10 U.S.C. § 1107,
(3) violation of 10 U.S.C. § 1107a, (4) violation of 50 U.S.C. § 1520, and (5) violation of the
Fourteenth Amendment.
III.

ANALYSIS
As a threshold matter, the Court finds there are two—and only two—Plaintiffs in this

case. Although the Amended Complaint contains “class action allegations,” the Court has not
certified any class, and Plaintiffs have not even filed a motion for class certification. See Fed. R.
Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues . . . as a class
representative, the court must determine by order whether to certify the action as a class action.”
(emphasis added)). Plaintiffs’ attempt to incorporate two additional non-parties via a footnote in
their Reply (ECF No. 43 at 5 n.7) is wholly inadequate. Thus, for present purposes, the only
relevant allegations are those pertaining to Plaintiffs Robert and Mulvihill.
The Court next considers the issues of standing and ripeness, both in terms of whether
Plaintiffs have established a likelihood of success on the merits and whether Defendants’ Motion
should be granted. “The doctrines of standing and ripeness substantially overlap in many cases.”
S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1157, (10th Cir. 2013). To satisfy
Article III’s standing requirements, a plaintiff must show: (1) he has suffered an injury in fact
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision. Id.
at 1153. In evaluating ripeness, often characterized as standing on a timeline, “the central focus

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is on whether the case involves uncertain or contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Id. at 1158 (quotation omitted).
Defendants assert that Plaintiffs’ claims are not yet ripe because Plaintiff Robert has
requested an exemption from the vaccination requirement, which remains pending, and Plaintiff
Mulvihill has sought and obtained a temporary medical exemption from the vaccination
requirement. (ECF No. 36 at 13-14.) Moreover, they argue, were the exemptions to be denied or
expire, the military has extensive administrative procedures that offer Plaintiffs multiple
opportunities to present their arguments to their respective branches and allow for those branches
to respond. In response, Plaintiffs contend that since Defendants control the exemption process,
“[i]t cannot be that [they] get to control the federal court’s jurisdiction based upon [their] timing
of the exercise of [their] discretion.” (ECF No. 46 at 3, ¶ 5.) However, on the current record, the
Court finds there is no basis to assume that Plaintiffs’ exemptions will be denied or revoked.
Under similar circumstances in Church v. Biden, 2021 WL 5179215, at *10 (D.D.C.
Nov. 8, 2021), the court concluded that two active-duty Marines’ claims of harm rested on
theories of injury that were speculative and contingent on their pending appeals being denied—
an outcome that might never come to pass. In finding the Marines’ claims nonjusticiable, the
Church court also cited the well-established principle that a court should not review internal
military affairs in the absence of exhaustion of available interservice corrective measures,
concluding that “[g]ranting the urgent injunctive relief sought by the Service Member Plaintiffs
would require the Court to adjudicate internal military affairs before the military chain of
command has had full opportunity to consider the accommodation requests at issue.” Id. at *1011.

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The Court agrees with the rationale in Church and concludes that Plaintiffs’ claims
involve uncertain and contingent events that may not occur as anticipated. As noted in the
Court’s previous Order, Plaintiffs’ contention that they may be subject to discipline for refusing
to take a vaccine appears to be based on nothing more than speculation. Because Plaintiffs have
not established that their claims are justiciable, a fortiori, they cannot establish a likelihood of
success on the merits or a clear and unequivocal right to injunctive relief. See id. at *8 (“The
merits on which plaintiff must show a likelihood of success encompass not only substantive
theories but also establishment of jurisdiction.” (quotation omitted)). Moreover, in the absence
of a justiciable claim, Defendants are entitled to dismissal of this case. 1
With respect to the Motion for Leave and the proposed amicus brief proffered by Pritish
Vora, the Court finds the information therein is not useful or otherwise necessary to the
administration of justice, and therefore the Court declines to consider it further.
IV.

CONCLUSION
Accordingly, the Court DENIES Plaintiffs’ Motion for Preliminary Injunction (ECF

No. 30), GRANTS Defendants’ Motion to Dismiss (ECF No. 37), and DENIES the Motion for
Leave (ECF No. 42). The Clerk is directed to CLOSE this case.
DATED this 11th day of January, 2022.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

Separate and apart from this basis for dismissal of Plaintiffs’ claims, the Court notes the complete lack of
allegations pertaining to any conduct by Defendants Bacerra and Woodcock, sued in their official capacities as
representatives of the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration,
respectively, that could be deemed to state a claim against either entity.
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