David Donovan v. Brian Vance ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID G. DONOVAN, Hanford No. 22-35474
Security Police Officer; CODY
ALMQUIST; KORA BALES; D.C. No.
DOUGLAS ANDERSON; JESS 4:21-cv-05148-
BEAN; JEFF AHLERS; CYRUS TOR
ANDERSON; DANIEL BEAM;
TAIN BALLANTYNE;
CHRISTOPHER J. HALL, Hanford OPINION
Security Police Officer; JARED
BETKER; DAYNNA COFFEY
ARDAMICA; THOMAS R.
ARDAMICA, Safety Bases
Compliance Officer; KEVIN ARENA;
STEPHEN C. PERSONS, United
States Department of Energy
employee; MIGUEL ARREDONDO;
DON BAKER; WILLIAM
BINGHAM; LUIS BLANCO; ERIK
BOMBARD; JAMES BOOTH;
STEPHANIE BOSCHERT; BRYAN
BROPHY; LUKE BULTENA; I. C.;
GEORGE CASE; RENE CATLOW;
BENJAMIN CHAVEZ; NICK
CHACON; MARY CATHERINE
CHRISTIANSON; JUSTIN
CLANCY; TODD JACOB CLARK;
MARGARET CLARK; BECKY
2 DONOVAN V. VANCE
COLBORN; DAVID COLE; MARY
COLE; DODD COUTTS; JAMES
CUEVAS; DAWNLEIGH CURTIS;
KELLY CUSTER; D. N.; JEFFREY
DANIELS; JAMIE DAVIES; SCOTT
DAWSON; BRIANA DELINE;
DARRYN DELINE; DREW
DIEDRICH; JOHN DOELL; JAKE
DOMIT; STEVE DONALDSON;
KATHRYN DRAPER; MIKE EDDY;
ALEXANDRIA EDWARDS; MARY
RUTH EDWARDS; LUKE ELLIS;
JESSE ELVIK; ZACHERY ESLICK;
ERIC ESPINOZA; CHERYL
EVOSEVICH; ADAM FARIES;
MARCUS FARIES; ROBYN FARIS;
THOMAS FARRIS; JENNIFER
FISH; RANDY FOX; MICHAEL
FRAZIER; SHARON FREELAND;
DOROTHY FRENZEL; PAUL
FRENZEL; DANIEL GABBARD;
JENNIFER GARDNER, AKA
Jennifer Gardiner; JAMES GAGNON;
EFREN GARCIA; ERIC GARCIA;
JAIME GARCIA; JOHN GARFIELD;
MATTHEW GARLICK; CHRIS
GEORGE; BEN GIESE; DON
GIESE; BRANDON GIMLIN;
CRYSTAL GIRARDOT; LEVI
GLATT; HEATHER GOLDIE;
MICHAEL GOMEZ; ENRIQUE
GONZALES; CHRISTOPHER
GOODSEL; MICHELLE GRADIN;
DONOVAN V. VANCE 3
DELMER GRAHAM; MATTHEW
GRAY; JERRY GRIDLEY; JOSE
GUTIERREZ; JOSEPH HADE; LEVI
HAMBY; ERIC HANSON, AKA Eric
Hansen; CAMERON HARDY;
DOUGLAS HART; MARGUERITE
HART; NICOLE HART; TIM HART;
VICTOR HART; CHAMISE
HARTMAN; PAMELA HARTSOCK;
JOSHUA K. HATCH; RON
HAVENS; KORY HEBDON;
LARRY HERBERT; KATIE
HENDERSONPL; JOSHUA
HEDRICK, AKA Joshua Herrick;
LEE HOLMES; JOY HOUCHIN;
MARVIN HUCK; ADAM
HUCKLEBERRY; ROBIN
HUDSON; JAMES IRELAND;
DANIEL IRISH; J. I.; ERIC ISON;
RODGER IVERSON; MIGUEL
IZTAS; BRYCE JACKSON; JOEL
JACKSON; RAYMOND JEFFERS;
GARDINER JEFFREY;
JOHNATHAN JOHNS; KAMI
JOHNS; TIMOTHY JOHNS;
BONNIE JOHNSON;
CHRISTOPHER JOHNSON; JAMES
JONES; FAITH KAANAPU; MARK
KAMBERG; FRANK KEARNY;
BRIAN KEELEAN; KEITH
KELLER; MAHLON KERWICK;
RONALD KNIGHT; MARK
KNIGHT; KARL KOHNE; KERRY
4 DONOVAN V. VANCE
KOST; PATRICK KRZAN; DUSTIN
LAMM; RYAN LANSING; GIL
LEAL; SHARON LEINEN;
BRIANNA LEITZ; JUSTIN
LETTAU; CARL LINDSTROM;
BRADLEY LOOSVELDT; COREY
LOW; OSCAR LUCATERO;
PHILLIP LOVE; GALE LYON;
ISMAEL MAGALLANES;
MATTHEW MALIN; JAIRO
MARTIN; DAVID MARTINEZ;
BYRON MASSIE; JAMES MATTE;
TRENT MAXWELL; SAM
MCCARLEY; JOE MEIER; NORMA
MENDOZA; CORY MEYER; KYLE
MEYER; KEVIN MILFORD;
DARREN MILLER; BENJAMIN
MINTER; JEREMY MIRANDA;
DERIK MOE; TRENT MOONEY;
RYAN MOORE, Attorney; JOELLE
MOSS; RYLEIGH MORRISON;
DANIEL MORROW; ALLEN
MORRIS; JENNIFER MULLEN-
MORRIS; PATRICK MURPHY;
PAUL NAEF; CELESTE NELSON;
JOHNNY NEER; TOBIN NEYENS;
MARCO NICACIO; MATT
NICHOL; JEFFERY NIELSON;
IVAN NUNEZ; JUAN NUNEZ;
KELLY O'BRIEN; ANGEL OJEDA;
LUIS OJEDA; WILLIAM OLSON;
MARK OSLIN; WILLIAM OWEN;
PATRICK PAESCHKE; STUART
DONOVAN V. VANCE 5
PALMER; NICHOLAS PARKER,
Trial Attorney; JEFFERY DAVID
PARRISH; KEVIN PATTERSON;
BRANDON PATTON; ZACHARY
PIKE; BRIAN PISCA; JESSE
POTTER; KELLY POYNOR;
BRYAN RAEDER; AGAPITO
RAMOS; KEVIN REBERGER;
HOWARD REED; MATTHEW
REED; ROBERT REYNOLDS;
RYAN RICHARDSON; RYDER
RICHARDSON; GREG RICHTER;
RYAN RICKENBACH; RAMON
RIOJAS; MARTIN RIOS MAGANA;
MICHAEL RIPLINGER; ERNESTO
RIVAS; JUNE ROBINSON; STACI
ROCKEY; GREGORY
RODENBURG; MANUEL .
RODRIGUEZ; JAIME RODRIGUEZ;
LORI ROGERS; RYAN
ROSENTHAL; LEISHA ROWE;
MISCHELLE RUSSELL; JAMISON
SADDLER; KYLE SALTZ;
WILLIAM SAMSON; OSCAR
SANCHEZ; MATTHEW SANDERS;
JOEL SAVAGE; RICK SCHIEFFER;
JACOB SCHMID; JESSICA
SCHUETTE; JOHN SCHUETTE;
DEVIN SHELBY; JEFF SHORT;
STEVE SHORT; THOMAS
SICHLER; GIDGET SILVERS;
STEPHEN H. SIMMONS; ANDREA
SIMS; DANIEL SIMS; EDWARD
6 DONOVAN V. VANCE
SINCLAIR; JOHN SISEMORE;
CATHY SLAPE; GABE SLAPE;
DEREK SMALL; GREGORY
SMITH; SHAD SMITH; STEPHEN
SMITH; WILLIAM SMOOT; TODD
SOMMERVILLE; KRISHEENA
STAJDUHAR; DAMON STANLEY;
KIRSTEN STANLEY; DAVID
STORACI; JOSEPH STOWMAN;
WILLIAM SULLIVAN; CARL
SUTHERLAND; APRIL
SWOFFORD; ROGER W.
SZELMECZKA; LINDA THOMAS;
JAMES THORNE; ANDREW
TUCKER; DANIEL TURLINGTON;
AMANDA L. TYLER, Professor;
ARIC TYLER; EVA UPCHURCH;
BRANDT URWIN; JEFF
VANDERPOL; ANGELA
VILLAREAL; AARON WEBBER;
RYAN WEIDEMAN; SHAWN D.
WELKER; HANS WELLENBROCK;
TRENT WELLNER; TOBIN
WELLS; KRISTINA WHALEN;
DANIEL WHARTON; NATHANIEL
WICK; WENDY WILDE; KEATON
WILLIAMS; LOGAN WILLIAMS;
BRIAN WILLIAMSON;
NATHANIEL WILSON; ROBERT
WOOD; PAUL WULFF; TIM YORK;
ROBERT ZANE; D. N.; WILLIAM
WEISBERG, Esquire; TERRI
ADAMS; JARYD JOSEPH
DONOVAN V. VANCE 7
ANDERSON; LESLIE BLANK;
SHANNA BRITTAIN; NATHANIEL
BROOK; JEFF BROOKS; JACOB
CLARK; JAMES T. CLARK; LANE
DAHL; MARY E. DAY; JAMES
DEWEY; GREGG DILLINGHAM;
TODD DIRKS; ERIC DYSLAND;
JOHN FLANAGAN; ALEJANDRO
FRAGOZO; ERIKA JORDAN;
THOMAS S. KRASNER; DOUGLAS
PATNODE; ADRIANA ELIZABETH
PRESCOTT; CHRISTOPHER
YAROCH,
Plaintiffs-Appellants,
and
ALICIA URWIN; SHARI
WEISBERG; KENNETH JARMAN,
Plaintiffs,
v.
BRIAN VANCE, in his official
capacity as Manager of the United
States Department of Energy Hanford
Site; JOSEPH R. BIDEN, in his
official capacity as President of the
United States of America; JENNIFER
GRANHOLM, in her official capacity
as Secretary of the United States
Department of Energy,
Defendants-Appellees,
8 DONOVAN V. VANCE
and
VALERIE MCCAIN, in her official
capacity as Vit Plant Project Director,
BECHTEL; SCOTT SAX, in his
official capacity as President and
Project Manager of Central Plateau
Cleanup Company; ROBERT
WILKINSON, in his official capacity
as President and Program Manager of
Hanford Mission Integrated Solutions
LLC; DON HARDY, in his official
capacity as Manager of Hanford
Laboratories Management and
Integration 222-S Laboratory
Manager; HIRAM SETH WHITMER,
in his official capacity as President and
Program Manager, HPM Corporation;
STEVEN ASHBY, in his official
capacity as Laboratory Director,
Pacific Northwest National
Laboratory,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
DONOVAN V. VANCE 9
Submitted June 7, 2023*
Seattle, Washington
Filed June 13, 2023
Before: William A. Fletcher, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton
SUMMARY**
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).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
10 DONOVAN V. VANCE
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.
DONOVAN V. VANCE 11
COUNSEL
Nathan J. Arnold, Arnold & Jacobowitz PLLC, Redmond,
Washington; Simon P. Serrano, Silent Majority Foundation,
Pasco, Washington; for Plaintiffs-Appellants.
Anna O. Mohan, Mark B. Stern, and David L. Peters,
Appellate Staff Attorneys; Brian M. Boynton, Principal
Deputy Assistant Attorney General, Civil Division; United
States Department of Justice; Washington, D.C.; John Drake
and Molly Smith, Assistant United States Attorneys;
Vanessa R. Waldref, United States Attorney, Eastern District
of Washington; Office of the United States Attorney;
Spokane, Washington; for Defendants-Appellees.
12 DONOVAN V. VANCE
OPINION
CLIFTON, Circuit Judge:
Plaintiffs-Appellants, 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.2 Plaintiffs sought injunctive and declaratory
relief to address their allegedly “imminent and wrongful
termination[s]” for failure to comply with the vaccination
requirements.
1
See Exec. Order No. 14,042, 86 Fed. Reg. 50,985, 50,985–88 (Sep. 14,
2021) (Federal contractor vaccine mandate); Exec. Order No. 14,043, 86
Fed. Reg. 50,989, 50,989–90 (Sep. 14, 2021) (Federal employee vaccine
mandate).
2
See 40 U.S.C. § 101 et seq. (Procurement Act); 41 U.S.C. § 1707(Procurement Policy Act); 5 U.S.C. §§ 551, 706 (APA); 42 U.S.C. §§
2000bb et seq. (RFRA); West Virginia v. EPA, 142 S.Ct. 2587, 2609
(2022) (explaining the major questions doctrine and federalism
concerns).
DONOVAN V. VANCE 13
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. Donovan v. Biden, 603 F. Supp. 3d 975, 985 (E.D.
Wash. 2022). It did so after denying Plaintiffs’ motion for a
temporary restraining order, a preliminary injunction, and
declaratory relief. Donovan v. Vance, 576 F. Supp. 3d 816,
827 (E.D. Wash. 2021). It also did so after providing three
opportunities for Plaintiffs to properly plead their
allegations. Plaintiffs appealed both the interlocutory and
final orders.
While this appeal was pending before us, the challenged
EOs were revoked by Executive Order 14,099 (Revocation
EO), effective May 12, 2023.3 We ordered supplemental
briefs from the parties addressing whether that revocation
caused this case to become moot. In that briefing, the
government argued that because President Biden has
revoked the challenged EOs, the appeal is moot. For their
part, Plaintiffs argued that the case is not moot, and that they
are entitled to damages under RFRA.
We conclude that the case is moot as to all non-RFRA
claims. We further conclude that Plaintiffs’ RFRA claims
are precluded by sovereign immunity. We therefore affirm
the district court’s dismissal of Plaintiffs’ RFRA claims,
dismiss the remainder of the appeal, and remand with
3
See Exec. Order No. 14,099, 88 Fed. Reg. 30,891, 30,891–92 (May 15,
2023) (Revocation EO).
14 DONOVAN V. VANCE
instructions to vacate the portion of the orders on appeal
addressing all non-RFRA claims.
1. Mootness
“A case is moot on appeal if no live controversy remains
at the time the court of appeals hears the case,” such that no
“appellate court can give the appellant any effective relief in
the event that it decides the matter on the merits in his favor.”
NASD Disp. Resol., Inc. v. Jud. Council of State of Cal., 488
F.3d 1065, 1068 (9th Cir. 2007) (internal citation and
quotation omitted). If so, “[t]he court . . . lacks jurisdiction
and must dismiss the appeal.” Pub. Util. Comm’n of State of
Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996).
The Revocation EO specifically provides that
“Executive Order 14042 and Executive Order 14043 are
revoked. Agency policies adopted to implement [the
challenged vaccine mandates], to the extent such policies are
premised on those orders, no longer may be enforced and
shall be rescinded consistent with applicable law.”
Revocation EO § 2 (emphasis added). Moreover, the Safer
Federal Workforce Task Force guidance—which had
provided instructions to agencies on implementing the
vaccine mandates and any exemptions—now states that “all
prior guidance from the Safer Federal Workforce Task
Force implementing the requirements of [the EOs 14042 and
14043] has also been revoked.’”4 See also Mayes v. Biden,
67 F.4th 921 (9th Cir. 2023) (explaining in depth the revoked
processes and resolving identically situated Federal
contractors’ claims on the merits).
4
See What’s New?, Safer Federal Workforce Task Force (May 12, 2023),
https://www.saferfederalworkforce.gov/new/ (emphasis added).
DONOVAN V. VANCE 15
The vaccine mandate exemption processes that the
Plaintiffs challenged were premised on the revoked EOs,
implemented according to the rescinded Task Force
guidance. We cannot provide relief from EOs and exemption
processes that no longer exist. Thus, “no live controversy
remains between the parties because the challenged activity
has evaporated or disappeared.” Ctr. For Biological
Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007)
(quotations omitted).
In sum, as to the claims alleging violations of the
Procurement Act, Procurement Policy Act, the APA, the
major questions doctrine, and structural constitutional
constraints, we hold that this appeal is moot and dismiss.5
2. Claim for Damages under RFRA
Plaintiffs also argue that they are entitled to damages for
violations of RFRA. However, “[s]overeign immunity
shields the United States from suit absent a consent to be
sued that is unequivocally expressed in the text of a relevant
statute,” Daniel v. Nat’l Park Serv., 891 F.3d 762, 768 (9th
Cir. 2018) (quotations omitted), and is a “threshold
jurisdictional issue[] that we review de novo,” Deschutes
5
We reject as meritless Plaintiffs’ suggestions that either the “capable of
repetition, yet evading review” or “voluntary cessation” exceptions to
mootness apply here. See, e.g., Protectmarriage.com-Yes on 8 v. Bowen,
752 F.3d 827, 836 (9th Cir. 2014) (capable of repetition yet evading
review exception applies only to “classes of cases that, absent an
exception, would always evade judicial review,” which is not the case
here given our opinion in Mayes); cf. e.g., Brach v. Newsom, 38 F.4th 6,
9 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 854 (2023) (holding
that the “mere possibility that California might again suspend in-person
instruction is too remote to save this case” from mootness) (emphasis
removed).
16 DONOVAN V. VANCE
River All. v. Portland Gen. Elec. Co., 1 F.4th 1153, 1158 (9th
Cir. 2021) (internal quotation omitted). We have held that
“RFRA does not waive the federal government’s sovereign
immunity from damages.” Oklevueha Native Am. Church of
Haw., Inc. v. Holder, 676 F.3d 829, 840 (9th Cir. 2012).
The government states that it “has not waived sovereign
immunity for monetary damages under RFRA or any of
plaintiffs’ statutory causes of action.” Because RFRA does
not waive sovereign immunity, and the government has not
otherwise done so, we dismiss Plaintiffs’ RFRA claims for
lack of jurisdiction on sovereign immunity grounds. See also
United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite for
jurisdiction.”).
3. Vacatur
Finally, the district court’s orders on appeal must be
vacated. Under United States v. Munsingwear, Inc., 340 U.S.
36, 39 (1950), “vacatur is generally automatic in the Ninth
Circuit when a case becomes moot on appeal.” NASD Disp.
Resol., Inc., 488 F.3d at 1068 (quotation omitted). We
decline to apply Munsingwear vacatur only when “the party
seeking appellate relief fails to protect itself or is the cause
of subsequent mootness.’” Id. at 1069 (quotation omitted)
(emphasis in original). But “mootness by happenstance
provides sufficient reason to vacate.” U.S. Bancorp Mortg.
Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 n.3 (1994).
Here, the President revoked the challenged EOs while
Plaintiffs’ appeal was pending, a happenstance outside their
control. Therefore, equitable principles do not counsel
against vacatur. See id. at 26 (vacatur requires “equitable
entitlement”). Furthermore, vacatur would not harm the
DONOVAN V. VANCE 17
public interest here. See id. (courts must “take account of the
public interest” in preventing collateral attacks on judgments
from parties that settle or render a case moot).
More broadly, Mayes resolved most of the issues in this
case in a precedential opinion that provides ongoing
guidance to the public. The fact that not all of Plaintiffs’
claims are moot does not prevent vacatur, because “partial
vacatur of a lower opinion can be appropriate.” City and
Cnty. of San Francisco v. Garland, 42 F.4th 1078, 1088 (9th
Cir. 2022); see also Camreta v. Greene, 563 U.S. 692, 698
(2011) (vacating only “the part of the Ninth Circuit opinion
that decided the Fourth Amendment issue” under
Munsingwear). To the extent Plaintiffs’ poorly pleaded
allegations raised different issues that the public has an
interest in seeing resolved, “[n]o matter what we conclude
[about vacatur], the opinion of the district court will not be
ripped from Federal Supplement [3]d. It will still be
available and will still be citable for its persuasive weight . .
. [which is] all the weight a district court opinion carries
anyway[.]” NASD Disp. Resol., Inc., 488 F.3d at 1069.
Each party to bear its own costs.
AFFIRMED in part; DISMISSED in part;
REMANDED with instructions to VACATE IN PART.