Joy Garner v. Joseph Biden

FILED
NOT FOR PUBLICATION
FEB 28 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOY GARNER, individually and on behalf No. 21-15587
of The Control Group; et al.,
D.C. No.
Plaintiffs-Appellants, 2:20-cv-02470-WBS-JDP
v.
MEMORANDUM*
JOSEPH R. BIDEN, in his official
capacity as President of the United States
of America,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted February 24, 2022**
San Francisco, California
Before: IKUTA, MILLER, and BADE, Circuit Judges.
Joy Garner, individually and on behalf of The Control Group—a non-profit
organization that surveyed unvaccinated individuals for the purposes of this
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
litigation—and a group of parents, who sue individually and on behalf of their
minor children (collectively, Appellants), appeal the district court’s dismissal of
their complaint against the President of the United States in his official capacity for
lack of standing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.1
Appellants’ First Amended Complaint (FAC) does not plausibly allege a
causal connection between Appellants’ alleged injuries and any actions by the
President. Because Appellants’ alleged injuries, ranging from being discriminated
against due to local vaccine mandates to “the mathematically proven imminent
dissolution of America from within,” are not “fairly traceable to the challenged
action[s] of the defendant,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
1
We note the district court’s February 11, 2022 order (Dkt. No. 39), which
purported to vacate the order on appeal. The court’s order had no effect, however,
because it was issued after Appellants filed their notice of appeal in our court. See
Matter of Visioneering Constr., 661 F.2d 119, 124 n.6 (9th Cir. 1981) (“Once a
notice of appeal is filed jurisdiction is vested in the Court of Appeals, and the trial
court thereafter has no power to modify its judgment in the case or proceed further
except by leave of the Court of Appeals.”). Neither party requested leave for a
limited remand to the district court to issue an indicative ruling. See Fed. R. Civ.
P. 62.1; Fed. R. App. P. 12.1. Assuming without deciding that we may nonetheless
remand in these circumstances, Mendia v. Garcia, 874 F.3d 1118, 1122 (9th Cir.
2017), we decline to do so here. Instead, we exercise our jurisdiction to determine
de novo whether Appellants have standing. Cf. United States v. Rodriguez, 851
F.3d 931, 938–39 (9th Cir. 2017) (concluding that “a remand to the district court
would be superfluous” when this court was required to conduct de novo review on
appeal).
2
(1992) (cleaned up), Appellants lack standing. As Appellants note in their FAC,
there is no federally mandated vaccine requirement; instead, the CDC recommends
various vaccine schedules, and state and local governments adopt their own
mandates based on those recommendations. Appellants’ FAC does not allege any
plausible connection between any of the President’s actions and the injuries
Appellants have allegedly suffered as a result of state and local vaccine
requirements.
Further, because Appellants seek declaratory and injunctive relief that we
cannot grant against the President of the United States, such as ordering the
President to conduct a national survey, see Juliana v. United States, 947 F.3d 1159,
1171 (9th Cir. 2020), Appellants’ alleged injuries are not likely to be “redressed by
a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks omitted).
Finally, the district court did not abuse its discretion in denying leave to amend
because permitting leave to amend would have been futile. See Perez v. Mortg.
Elec. Registration Sys., Inc., 959 F.3d 334, 340–41 (9th Cir. 2020).
AFFIRMED.
3