[00:00:02] Speaker 04: Our next case is Gray versus Washington Department of Transportation. [00:01:05] Speaker 00: Good morning, Your Honor. [00:01:06] Speaker 04: Good morning. [00:01:08] Speaker 00: And good morning to all of Your Honors, and may it please the Court. [00:01:10] Speaker 00: My name is Nathan J. Arnold. [00:01:12] Speaker 00: I represent the appellants, former employees of the Washington State Department of Transportation. [00:01:18] Speaker 00: The first issue here, and I think the easiest one to address briefly is. [00:01:21] Speaker 04: You want to reserve any time for rebuttal? [00:01:22] Speaker 00: Of course, Your Honor. [00:01:23] Speaker 00: I would like to reserve three minutes. [00:01:24] Speaker 04: Three minutes. [00:01:25] Speaker 00: OK, great. [00:01:25] Speaker 00: Thank you so much. [00:01:26] Speaker 00: OK, go ahead. [00:01:26] Speaker 00: And I should move my laptop, too, so I can see the timer. [00:01:30] Speaker 04: Thank you for reminding me. [00:01:31] Speaker 04: I'll try and help you out. [00:01:32] Speaker 00: Thank you, Judge. [00:01:33] Speaker 00: I appreciate it very much. [00:01:35] Speaker 00: The first issue here is we assign error to the district court not allowing leave to amend. [00:01:41] Speaker 00: This was a first complaint that was dismissed on a rule 12 motion without oral argument. [00:01:47] Speaker 00: We believe that that is error that district court should as abuses discretion when it denies leave to amend, which is we know from the recent Bacon versus Woodard case and others, the district court has a suesponte obligation to analyze whether or not [00:02:02] Speaker 00: amendment would truly be futile and under rule 15A. [00:02:06] Speaker 03: Let me ask you this question, and it relates, I think, at least tangentially to your argument on the leave to amend. [00:02:13] Speaker 03: It seems to me that the original complaint did not make allegations that these individuals were acting in their individual capacity when making decisions about [00:02:27] Speaker 03: the exemption, and more importantly, the accommodation. [00:02:30] Speaker 03: This argument with respect to leave to amend, is it so that those kinds of allegations can be made? [00:02:39] Speaker 03: Because otherwise, I think there is legitimately this question about whether sovereign immunity bars all of the claims because you're seeking monetary relief from individuals. [00:02:51] Speaker 03: But from what I can tell, until the opening brief, they're really [00:02:55] Speaker 03: wasn't an argument below that you are bringing these claims against the individuals in their individual capacity. [00:03:04] Speaker 00: And thank you, Your Honor. [00:03:06] Speaker 00: The first answer is yes. [00:03:08] Speaker 00: One of the things that would be added on amendment is additional allegations. [00:03:10] Speaker 00: I think we indicated that in our opening brief and reply, additional allegations against the individuals to bring those claims. [00:03:18] Speaker 00: Separately and perhaps, well, maybe not more importantly, but as importantly, it appears that the court below [00:03:25] Speaker 00: And perhaps we should have been more explicit in our pleadings about this, but prospective injunctive relief, that is reinstatement of individuals who we take the position are wrongfully terminated over their religious objections, among other things, that is something that is not barred by sovereign immunity. [00:03:42] Speaker 03: So are you seeking something other than monetary relief? [00:03:45] Speaker 03: Are you seeking prospective injunctive relief or reinstatement? [00:03:49] Speaker 00: Yes, Your Honor. [00:03:51] Speaker 00: And so that is prospective injunctive relief. [00:03:53] Speaker 00: Sovereign immunity would not apply. [00:03:55] Speaker 00: Qualified immunity analysis is irrelevant to that as well. [00:04:00] Speaker 00: So that is another thing where had we had oral argument, perhaps our pleadings is not spelled out enough. [00:04:04] Speaker 00: We did use the terms repable harm. [00:04:05] Speaker 00: We did ask for equitable other equitable relief in our prayer. [00:04:10] Speaker 00: But an opportunity to have present oral argument to the court would have allowed us to [00:04:14] Speaker 00: Explain that further and certainly an amendment we could explain that further as well and where the basis for dismissal were sovereign immunity and qualified immunity those simply do not apply to respective injunctive relief. [00:04:23] Speaker 00: We know that from Verizon v. Maryland, Will v. Michigan State Police, etc. [00:04:28] Speaker 00: But did more directly answer your question though, Your Honor. [00:04:30] Speaker 00: Yes, there would be the addition of participation in the accommodation and exemption decisions. [00:04:37] Speaker 03: The exemption... Do you concede that then their complaint does not [00:04:41] Speaker 03: make allegations with respect to the individuals and their individual capacity, putting aside the request to file an amended complaint? [00:04:51] Speaker 00: Your Honor, I think the complaint on its face does make allegations particularly that go towards or show hostility towards religion, which is one of the three bedrock principles that was [00:05:06] Speaker 03: Distilled from Supreme Court Preston the recent case of to where in the complaint there are allegations made against these individuals on their individual capacity because even what you just argued I agree that there are some allegations sort of generally Talk about that, but they're done in the context of these individuals making these decisions in their official capacity So if you have some citations to the record and complaint in particular certainly your honor that [00:05:38] Speaker 00: skipping ahead a bit in my script here, Your Honor. [00:05:41] Speaker 00: Sorry. [00:05:41] Speaker 00: No, of course, not at all. [00:05:43] Speaker 00: So, Your Honor, one of the things that we saw is we see many examples of communications that while medical exemptions will be considered, [00:05:56] Speaker 00: and not just exemptions, but also accommodations. [00:05:58] Speaker 00: I think it's really important to, as the court I'm sure is well aware, this is a two-step process. [00:06:02] Speaker 00: Exemption is not the issue in this case. [00:06:03] Speaker 00: Exemptions are granted across the board in this context, with few exceptions, I shouldn't say across the board, it's not 100%, with few exceptions. [00:06:10] Speaker 00: One of the big problems here though, from a free exercise and equal protection standpoint, is that people are receiving their exemptions in the same communication and saying, [00:06:19] Speaker 00: But we're not going to accommodate you. [00:06:20] Speaker 00: And that also affects, well, basically all of our claims here as well, because that means we don't have an opportunity to be heard, have a pre-deprivation or post-deprivation period. [00:06:29] Speaker 02: So let's talk about the individual. [00:06:30] Speaker 02: Yeah, go ahead. [00:06:31] Speaker 02: Because I want to get to the heart of the matter, in which case the amendments may not matter. [00:06:35] Speaker 00: Certainly. [00:06:36] Speaker 00: So we have multiple examples of direct communication on that point. [00:06:43] Speaker 00: We also have the fact that the very paperwork itself that the individuals had to fill out, our pleadings assert, and I would argue to the court, had a chilling effect. [00:06:55] Speaker 00: The individuals that are responsible for creating that paperwork, most specifically, I'd point to paragraph 72 in footnote three on that point. [00:07:04] Speaker 00: One of the questions that was asked, and actually it wasn't a question, Your Honor, it was a attestation requirement. [00:07:10] Speaker 00: When seeking a religious exemption, [00:07:12] Speaker 00: Employees were required to attest that they had never received any medicine in their adult lives that I would suggest the court and it's in our pleadings was a Purposeful decision by the department to chill the number of people who would request religious exemptions and would therefore go to the hostility prong That is one of the factors. [00:07:37] Speaker 00: Of course when we're talking about a free exercise claim we also have the [00:07:42] Speaker 00: The decision makers here can also be liable over qualified immunity where they have the ability to prevent the harm of a clearly established constitutional right. [00:07:54] Speaker 00: And I would suggest the court that there is no one else in these organizations other than the secretary who is the penultimate bureaucrat after the governor himself. [00:08:05] Speaker 00: and then those in charge of the HR department or departments who are ultimately making these decisions have the authority to override any decision below, therefore avoiding the deprivation of rights that my client suffered. [00:08:18] Speaker 02: I want to go back to the substantive claims. [00:08:20] Speaker 02: So let me start with the due process claim. [00:08:23] Speaker 02: And my impression is there's not really a laddermill violation. [00:08:27] Speaker 02: And I thought you, to some degree, conceded that in your briefs. [00:08:31] Speaker 02: Is that correct? [00:08:33] Speaker 00: I would not, I do not think we've conceded that, Your Honor. [00:08:37] Speaker 00: One of the places where we, as I just mentioned, a lot of individuals don't have a chance for a Loudermill hearing, and we understand the standard for Loudermill is not particularly high. [00:08:46] Speaker 00: However, when you receive in the same instance, in the same piece of paper, we accept your religious belief is sincere, but we're not going to accommodate you. [00:08:56] Speaker 00: That means there is no chance to have that interactive process and have some dialogue [00:09:00] Speaker 00: For example, and this is the case and it's in our pleadings, if I'm someone that works from home and I telework, I believe that Loudermill and the other cases, Perry, Davis, etc. [00:09:14] Speaker 00: under the requirement that a public employee have some opportunity to be heard, those employees should have had a chance to explain, I have or I can do my work on the phone or on my computer and I'm not going to transmit COVID to someone on the phone. [00:09:31] Speaker 02: There's kind of two parts to it. [00:09:33] Speaker 02: I understand that you're making, you know, that it's not a facial challenge and I recognize some of the [00:09:39] Speaker 02: opposing counsel's argument relates to facial changes. [00:09:42] Speaker 02: So that's out the door. [00:09:43] Speaker 02: You say, OK, we're not going to do that. [00:09:44] Speaker 02: We're making an as-applied challenge. [00:09:48] Speaker 02: What I'm searching for is the clearly established constitutional right in the constitutional challenge. [00:09:59] Speaker 02: So if they make a determination, [00:10:03] Speaker 02: that and I can see a state law claim here. [00:10:06] Speaker 02: I can see a state employment law claim, which is not really an issue here, but I could see one. [00:10:11] Speaker 02: But you're saying there's a federal constitutional violation. [00:10:14] Speaker 02: So with respect to the due process claim, what is the clearly established right that you're relying on? [00:10:20] Speaker 00: So there's there's two in the umbrella of due process that we're particularly focused on here. [00:10:28] Speaker 00: One is the right to pre and post deprivation hearings. [00:10:32] Speaker 00: including the ability to provide sworn affidavits, which my clients were not afforded, some of whom requested it and were told, and this is in our pleadings, they were told, we only offer Loudermill hearings if this is disciplinary in nature. [00:10:47] Speaker 00: Reclassifying something as disciplinary versus non-disciplinary does not affect a public employee's right to a hearing And I would suggest your honors that there's nothing much more disciplinary in the employment context Then we're going to terminate you take your pension and all of your government benefits and laudermill is the case that we should laudermill is what you look at for that Yes, sir. [00:11:07] Speaker 02: Okay, and and with respect to it. [00:11:10] Speaker 00: You said there's two cases I thought so another due process issue as well is [00:11:16] Speaker 00: under our get to my right page here. [00:11:21] Speaker 00: We also have the issue of um of constitutionally protected privacy and the rights of medical and bali autonomy. [00:11:29] Speaker 00: Now typically the government has relied and this is uh developed considerably throughout covid but there are cases that predate the actions of these defendants that the jacobson case jacobson versus massachusetts is not [00:11:45] Speaker 00: the end-all when it comes to vaccine-related or pandemic-related emergencies. [00:11:52] Speaker 00: Jacobson was a 14th Amendment case. [00:11:53] Speaker 00: It was not a 1st Amendment case. [00:11:55] Speaker 02: So what's the gap right there? [00:11:56] Speaker 02: I want to understand the due process nature. [00:11:59] Speaker 02: We've got a lot of cases flying around here. [00:12:01] Speaker 02: We also have pre-COVID, post-COVID, and then we have a lot of law that came after with Bacon and others. [00:12:10] Speaker 02: Your second constitutional right is the right to medical autonomy? [00:12:15] Speaker 00: Yes, an interest in bodily autonomy. [00:12:16] Speaker 00: And to cite, Your Honor, some of these cases, Cruzon, First Director of the Missouri Department of Health, which stands for the proposition that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. [00:12:30] Speaker 00: That's a case from 1990. [00:12:31] Speaker 03: Can you give us the site to that case? [00:12:33] Speaker 00: Absolutely, Your Honor. [00:12:34] Speaker 00: That is 497 US 261. [00:12:41] Speaker 00: And then another case that supports this position, or establishes that this is clearly established, is Washington v. Glucksburg. [00:12:47] Speaker 00: That citation is 521 U.S. [00:12:49] Speaker 00: 702. [00:12:51] Speaker 00: That's a 1997 case. [00:12:54] Speaker 00: Strict scrutiny is required when there's a condition of- Did you cite Cruzon in your briefs? [00:13:00] Speaker 00: I believe we did, Your Honor. [00:13:01] Speaker 02: I'm looking- It is possible we did not. [00:13:06] Speaker 02: Okay. [00:13:07] Speaker 02: I'm looking at your briefs. [00:13:08] Speaker 04: Yeah, I don't think you did. [00:13:09] Speaker 02: I don't think you did. [00:13:10] Speaker 00: I'm sure that is the case then. [00:13:12] Speaker 02: But I mean, you know, it matters, because here we are trying to figure out. [00:13:15] Speaker 02: These are complicated issues. [00:13:17] Speaker 02: And I know you acknowledge that and understand that. [00:13:19] Speaker 02: But we can wave our hands, and we can say it's unfortunate, whatever. [00:13:25] Speaker 02: But we're really what your case is going to rest on, and this will be true of free exercise and equal protection also, is so we could define what's the clearly established constitutional right. [00:13:37] Speaker 02: Because we could assume there's a violation, possibly. [00:13:40] Speaker 02: But then we have to say, but what's the clearly established right as of that date for the precise thing that you're asking for? [00:13:46] Speaker 02: So you're right to medical autonomy. [00:13:51] Speaker 02: Is your claim that you can't force somebody to have a vaccination or your claim? [00:13:56] Speaker 02: I mean, because this is different. [00:13:58] Speaker 02: Nobody's saying you have to have vaccinations to say you can't work here if you don't have it. [00:14:02] Speaker 03: You're putting this under the banner of your due process claim, though. [00:14:05] Speaker 03: You're saying that there are really two theories underlying your due process violation. [00:14:10] Speaker 03: Yes, there are. [00:14:11] Speaker 03: Right. [00:14:11] Speaker 03: One is the. [00:14:12] Speaker 03: pre and post deprivation hearing. [00:14:15] Speaker 03: That's Otterville. [00:14:16] Speaker 03: And then you're saying there is a separate theory, which is this right to medical privacy or autonomy. [00:14:22] Speaker 00: Correct, Your Honor. [00:14:23] Speaker 02: Right. [00:14:23] Speaker 02: And what is, with respect to these plaintiffs, what is the right that was violated on a medical autonomy? [00:14:33] Speaker 00: So public employees have a right to their continued employment and their continued benefits, their pensions, et cetera. [00:14:40] Speaker 00: And the government under [00:14:42] Speaker 00: the case that I decided, along with Washington versus Glucksburg, where public employment is conditioned on receiving a medical treatment, strict scrutiny must apply. [00:14:54] Speaker 00: Now, when we look at a recent case for the Ninth Circuit, that's the Health Freedom Defense Fund versus Carvalho, they're in a Rule 12 posture, the allegations by the plaintiffs that the COVID-19 vaccination was not a true sterilizing vaccine, such as in Jacobson, [00:15:10] Speaker 00: smallpox vaccine, some other vaccines we have, then the analysis shifts and it's no longer a rational basis analysis, it's a strict scrutiny analysis. [00:15:19] Speaker 02: And so I think that is very- Just like the health, I didn't see the health. [00:15:21] Speaker 02: Yeah. [00:15:21] Speaker 02: Fun case cited either. [00:15:23] Speaker 02: I don't think it is. [00:15:25] Speaker 04: Yeah, I don't think it is. [00:15:26] Speaker 00: So what was the date on that, just for- The date, that's the ninth certification of 2024. [00:15:31] Speaker 00: So that would not inform them at the time- That would not be a clearly established right- Correct, Your Honor, absolutely. [00:15:37] Speaker 00: However, these prior cases from the nineties do establish that strict scrutiny applies when public benefits are conditioned upon the receipt of a medical treatment. [00:15:46] Speaker 00: And the reason health freedom is important is it draws that distinction between a true sterilizing vaccine that's going to affect your neighbor and the next cubicle over as opposed to something that is a medical treatment that's going to protect you individually, which when [00:16:01] Speaker 00: In that case, the Ninth Circuit, this court found that that was what was pled, and in rule 12 posture, that is accepted as true, and that is similar to what we pled. [00:16:09] Speaker 00: And Your Honor, I'm running out of my time, and I don't think I've touched on free exercise. [00:16:14] Speaker 00: So there's a series of cases there that establish as well that the government cannot, without passing strict scrutiny, deprive someone of their public benefits. [00:16:23] Speaker 00: That starts with the Sherbert case. [00:16:26] Speaker 00: It goes to Wisconsin versus Yoder. [00:16:29] Speaker 00: Thomas Review Board. [00:16:31] Speaker 00: And these are cases from the 60s and now we're up to 1981 with Thomas review board. [00:16:36] Speaker 04: Do you all have any questions now about this or can we wait till rebuttal? [00:16:39] Speaker 04: I'm fine with hearing on rebuttal. [00:16:41] Speaker 02: I'm fine too. [00:16:42] Speaker 04: Okay, I'll give you three minutes on rebuttal. [00:16:44] Speaker 04: Thank you so much. [00:16:45] Speaker 04: Thank you very much. [00:17:09] Speaker 01: Good morning. [00:17:09] Speaker 01: May it please the court. [00:17:11] Speaker 01: Zach Bacalus for Appellees. [00:17:13] Speaker 01: The fundamental flaw in appellants' claims is that they seek to constitutionalize the accommodation provisions of Title VII and ADA. [00:17:21] Speaker 01: Statutory claims, the complaint does not plead and whose exhaustion requirements plaintiffs have not met. [00:17:27] Speaker 01: But neither the free exercise clause nor the equal protection clause nor the due process clause requires government employers to make religious or medical accommodations for their employees [00:17:38] Speaker 01: provide any sort of particularized pre-termination accommodation process. [00:17:44] Speaker 01: such as a formal hearing. [00:17:46] Speaker 01: Appellants cite no decision of the Supreme Court, this court, or really any federal court holding otherwise. [00:17:53] Speaker 01: And that fact is fatal to their suit because the district court dismissed it on qualified immunity grounds. [00:17:59] Speaker 01: To prevail then, appellants have to show not just a possible or plausible right, but they have to show that WSDOT officials, in their individual capacity, violated a constitutional right [00:18:10] Speaker 01: that was clearly established at the time of the accommodation decision, which here was in October of 2021. [00:18:17] Speaker 01: This means that existing precedent must have placed the constitutional violation beyond doubt. [00:18:22] Speaker 01: Because the governing law actually supports the opposite conclusion, appellants have failed to show that any of their three preserved federal claims should have survived dismissal. [00:18:33] Speaker 01: Before taking up those claims in their particular, I want to address a point Judge McEwen alluded to and an overarching argument that appellants make, which is that because they've articulated their claims, they've styled their claims as applied challenges. [00:18:46] Speaker 01: somehow a different substantive constitutional standard should apply. [00:18:51] Speaker 01: That's incorrect. [00:18:52] Speaker 01: As the Supreme Court explained in Buckloo v. Presythe, classifying a lawsuit as facial or as applied does not speak at all to the substantive rule of law necessary to establish a constitutional violation. [00:19:06] Speaker 01: Thus, the same established constitutional standards that this court and many other courts have applied in adjudicating facial challenges to vaccine mandates apply to this case as well. [00:19:18] Speaker 03: So let me ask you this. [00:19:19] Speaker 03: If we were to accept the arguments made by your friend on the other side this morning that there are these additional theories that suggest that there were constitutional violations like the medical privacy, maybe not the pre and post deprivation hearing issue, but this argument that we're hearing about today, [00:19:35] Speaker 03: Is there a scenario in which, if they're allowed to amend their complaint, they could in fact plead facts of individualized and specific violations of law under an as-applied framework? [00:19:53] Speaker 01: No, Judge Desai, and that's because the doctrinal infirmities here are baked into the extensive allegations in the complaint. [00:20:01] Speaker 01: To take the medical privacy claim for one, that's a species of a substantive due process claim, not a procedural due process claim, and plaintiffs have not [00:20:11] Speaker 01: articulated a substantive due process claim either in this court or in the district court. [00:20:16] Speaker 01: So that substantive due process theory is waived. [00:20:20] Speaker 01: They did raise it as a state law claim in the district court in their complaint. [00:20:24] Speaker 01: They called it a privacy claim under the Washington law. [00:20:27] Speaker 01: Correct, Judge McEwen. [00:20:28] Speaker 01: But they have not attempted to make a similar claim at any stage of the proceedings. [00:20:33] Speaker 01: as a species of federal substantive due process. [00:20:36] Speaker 02: So under the due process, their argument under Laddermill is that you're entitled to something, something more than nothing. [00:20:44] Speaker 02: And in their view, they got nothing. [00:20:46] Speaker 02: So they cite Laddermill as the clearly established law. [00:20:53] Speaker 02: You say, well, no, you're mixing and matching Title VII or Washington law against discrimination. [00:20:59] Speaker 02: employment cases with constitutional cases. [00:21:03] Speaker 02: So would you address that? [00:21:04] Speaker 01: Before I address the law, I think the most important thing is to address the facts because I think given the record here, it's more confusing, whereas the law is super clear. [00:21:12] Speaker 01: Plaintiffs do not allege that they received no hearing or no discussion. [00:21:17] Speaker 01: What the complaint alleges is that they did not receive a formal adjudicative hearing prior to their termination. [00:21:23] Speaker 01: However, they recognize that every single plaintiff who was denied an accommodation received a form letter. [00:21:30] Speaker 01: That's what they call it in the complaint, a form letter. [00:21:32] Speaker 01: Said the exact same thing. [00:21:33] Speaker 01: And that form letter, which is identified [00:21:36] Speaker 01: at its exhibit AI of the complaint, 3ER564, that form letter says to every single plaintiff, you may request a meeting to discuss this decision. [00:21:47] Speaker 01: And some of the plaintiffs said they did request a meeting, and they had a meeting. [00:21:51] Speaker 01: One of the meetings is actually described, and it's quite a substantive back and forth between plaintiff Panaris and the [00:21:58] Speaker 01: so-called oiler expert who HR provided during that meeting. [00:22:02] Speaker 01: So there's not an allegation that they didn't have an opportunity to discuss their accommodations and separations. [00:22:09] Speaker 01: They just said it wasn't formal enough process or that they weren't taken seriously enough. [00:22:14] Speaker 01: But that's really a substantive disagreement with the standard that they said WSDOT applied here, which they said was too high, too strict, too stringent. [00:22:23] Speaker 01: But this court in Bacon, in the unpublished decision in Bacon, rejected the exact same argument from the plaintiffs, who happened to be represented by Appellant's counsel here. [00:22:32] Speaker 01: They said it was a sham hearing process, that they applied overly stringent standards to the denial of accommodations. [00:22:39] Speaker 01: But the Bacon court said that this is really just the firefighter saying they did not like the substance of the city's construction of the proclamation in their individual cases. [00:22:48] Speaker 01: That is not a procedural due process objection. [00:22:52] Speaker 02: did get exemptions or accommodations, I should say, correct, on a religious basis? [00:22:59] Speaker 01: Correct. [00:22:59] Speaker 02: That might go somewhat to the equal protection, but does also go to the due process. [00:23:03] Speaker 01: Well, it certainly shows because [00:23:05] Speaker 01: They freely admit that some employees who were in jobs where the risk could be sufficiently mitigated or eliminated received medical and religious accommodations. [00:23:15] Speaker 01: That by itself shows that this was not a sham process. [00:23:19] Speaker 01: A sham process means that they've decided everyone's not going to get a religious accommodation or a medical accommodation. [00:23:25] Speaker 01: So they've really pleaded themselves out of that sham claim, even if it were cognizable under these facts. [00:23:30] Speaker 01: Now, I want to just back up and say our primary position is that Loudermill doesn't apply at all here. [00:23:36] Speaker 01: Because unlike the Loudermill case itself, which involved individualized discipline of an individual employee, this is really the application of a generally applicable, effectively legislative provision, the proclamation, to all the employees. [00:23:50] Speaker 01: And under United States versus Locke, when a government alters substantive rights through rules of general applicability, [00:23:57] Speaker 01: the government provides constitutionally adequate process by enacting the statute, publishing it, and affording those within its ration opportunity to comply. [00:24:06] Speaker 01: And so again, the unpublished decision in Bacon v. Woodward holds just that, that because it was this generally applicable proclamation, there was no level of process required other than notification, notice of its provisions, and an opportunity to comply, which appellants concededly received here. [00:24:24] Speaker 01: With respect to that, I'm going to turn to the free exercise claim unless there's additional questions about procedural due process. [00:24:30] Speaker 01: So the fundamental problem with plaintiff's free exercise claim is that it hinges on a disparity between the grant of religious accommodations on the one hand and medical accommodations on the other. [00:24:45] Speaker 01: But this court and many courts, courts of appeals, the First Circuit, the Second Circuit, the Third Circuit, have all held that religious and medical exemptions are not comparable for free exercise purposes because they do not undermine the government's asserted interests in protecting employee or student health in a comparable way. [00:25:05] Speaker 01: And that comes directly from this court's decision [00:25:08] Speaker 01: in Doe v. San Diego Unified School District, and it's also in the Doe v. Mills of the First Circuit, Spivak v. City of Philadelphia in the Third Circuit, and the multiple We the Patriots USA decisions out of the Second Circuit. [00:25:23] Speaker 01: So again, here, the clearly established law actually points the opposite direction. [00:25:28] Speaker 01: So, if you could have a vaccine mandate that says, religious accommodations, no, none, but medical accommodations, yes, some, a fortiori, simply positing a disparity, a distinction in the rate of grants of religious accommodations and medical accommodations can't possibly render the law not generally applicable. [00:25:51] Speaker 01: and asked for their allegations of non-neutrality, what plaintiffs call an impermissible hostility towards religious beliefs. [00:25:59] Speaker 01: These are simply conclusory allegations. [00:26:01] Speaker 01: Mr. Arnold, when asked about what additional allegations, could you add, what allegations do you have here that support the free exercise claim? [00:26:08] Speaker 01: He said, well, they have a hostility towards religion and stating that medical accommodations will not be considered. [00:26:15] Speaker 01: So this pops up several times in their brief and in the complaint, the idea that medical accommodations will not be considered. [00:26:21] Speaker 01: What it really comes from is a single email from defendant Pelton. [00:26:28] Speaker 01: And it's alleged in paragraph 346 of the complaint, and then it's reproduced as well as exhibit AW on ER 652. [00:26:41] Speaker 01: And what Pelton is saying here, [00:26:43] Speaker 01: is that only temporary accommodations for medical reasons will be approved, such as pregnancy, breastfeeding, cancer treatment, clinical trials. [00:26:53] Speaker 01: And that itself, although it's not necessary to decide because medical accommodations and religious accommodations aren't germane, that itself explains why there might have been a disparity. [00:27:04] Speaker 01: in medical accommodations versus religious accommodations because, as the record shows, when someone either had just gotten COVID or was pregnant or breastfeeding or for some sort of temporary medical condition, or even if they decided to get vaccinated, if their religious accommodation requests were denied, and then they said, okay, I've decided to get vaccinated, the record shows that they could have waited [00:27:27] Speaker 01: And they're not going to make it to the deadline, so they have to go on a leave of absence. [00:27:30] Speaker 01: But that was also treated as a medical accommodation. [00:27:34] Speaker 01: So the idea that that reveals some sort of animus is totally false, if you actually look at the email that defendant Pelton said. [00:27:42] Speaker 01: And again, that's paragraph 346 of the complaint, or exhibit AW of the complaint. [00:27:47] Speaker 01: So that's all they have. [00:27:48] Speaker 01: All their allegations of animus, where they're quoting the Facebook pages or messages, [00:27:53] Speaker 01: of various managerial employees, whether they're defendants or not. [00:27:57] Speaker 01: What that reveals is a desire to get people vaccinated. [00:28:01] Speaker 01: There's not a single reference to religion. [00:28:03] Speaker 01: There's not a single reference to religious objectors. [00:28:06] Speaker 01: It doesn't rise nearly to the level of what you saw in, say, a masterpiece cake shop where there was a specific animus. [00:28:16] Speaker 01: There is an impermissible hostility towards the people who exercise medical accommodations for their religious beliefs. [00:28:22] Speaker 01: It just isn't there. [00:28:24] Speaker 01: The last point I want to address is the equal protection clause, which is subsumed within and coextensive with the free exercise claim. [00:28:30] Speaker 01: Locke v. Davey of the Supreme Court, Orrin v. Barclay, and Doe's 1 through 6 v. Mills clearly show that when the allegation is religious-based discrimination, an equal protection clause falls along with a free exercise claim when you can't make it. [00:28:47] Speaker 01: There are a few other issues that Mr. Arnold raised that I want to briefly address. [00:28:53] Speaker 01: The claim for injunctive relief here is waived. [00:28:57] Speaker 01: There's no mention in the complaint of a request for injunctive relief. [00:29:01] Speaker 01: And although there was a passing reference to it, I believe, to reinstatement in the district court, neither the opening brief nor the reply brief mentions reinstatement or any form of injunctive relief. [00:29:11] Speaker 01: So that's an issue that this court need not take up. [00:29:13] Speaker 01: It's clearly been forfeited. [00:29:22] Speaker 02: What about your position that, in fact, based on the district court proceedings and then now going into the Court of Appeals, that both free exercise and equal protection were forfeited? [00:29:33] Speaker 01: I think our argument is that the qualified immunity arguments as to those were forfeited because they didn't specifically address them. [00:29:43] Speaker 01: I think you can address qualified immunity in a way that you can address the merits in a way that also is addressing qualified immunity. [00:29:50] Speaker 01: But because their pleadings below their briefing below was so scattershot, it really didn't isolate. [00:29:55] Speaker 01: It didn't do exactly what this court has done today said. [00:29:57] Speaker 01: What is the case? [00:29:59] Speaker 01: They didn't say what is the case that gives you a clearly established law showing a free exercise violation here or due process violation here. [00:30:11] Speaker 01: Unless the court has, oh, I'm sorry, one last thing. [00:30:14] Speaker 01: Mr. Arnold briefly mentioned a post deprivation process. [00:30:18] Speaker 01: There's no reference in any of the briefs or anything below to post deprivation relief. [00:30:23] Speaker 01: They are focused on the lack of a pre-termination formal hearing before they were separated, not after. [00:30:32] Speaker 01: And for those reasons and those stated in the briefs, we ask that this court affirm the district court in all respects. [00:30:37] Speaker 04: Thank you. [00:30:46] Speaker 00: Good morning, Your Honor. [00:30:49] Speaker 00: Quickly, a qualified immunity analysis by the appellate court is actually taken in light of all the relevant precedent. [00:30:56] Speaker 00: It doesn't necessarily have to be cited to the court below. [00:30:58] Speaker 00: That comes from Elder v. Holloway, 510 US. [00:31:02] Speaker 02: Right, but you know, it is a little helpful to us in preparation. [00:31:06] Speaker 02: I'm looking at, I haven't, I know these cases in broad sense, just from our experience here, but you're citing cases, they're not in the briefs. [00:31:14] Speaker 02: And it might be helpful next time. [00:31:16] Speaker 00: I apologize for that, Your Honor. [00:31:18] Speaker 00: And I'm sure it is more than a little help. [00:31:20] Speaker 02: Small suggestion. [00:31:21] Speaker 00: Thank you, Your Honor. [00:31:22] Speaker 00: I appreciate that suggestion. [00:31:24] Speaker 00: A couple of issues. [00:31:26] Speaker 00: Again, this is not a facial challenge, specifically because the governor's proclamation allowed a constitutional pressure release valve, as it were. [00:31:33] Speaker 00: It required compliance with the state constitution, the federal constitution, ADA, Title VII wallet, et cetera. [00:31:39] Speaker 00: This is just not a facial challenge. [00:31:41] Speaker 00: Also, the proclamation is there to stem the spread of COVID. [00:31:44] Speaker 00: not to protect the workforce and support a distinction from some of the cases that my colleagues cited that are out of circuit, that I would contrast to the Bacon case, which is in circuit here. [00:31:56] Speaker 00: We have pled more than just a being disgruntled with the level of formality or the type of hearings that we receive. [00:32:04] Speaker 00: There are allegations or complaint of people asking for meetings, not receiving them. [00:32:08] Speaker 00: And I would point again to this what's supposed to be a two step process that is we [00:32:13] Speaker 00: We approve or deny your exemption, and then we're supposed to meet and deal with accommodation where the pervasive, as we've pled, the pervasive message, both explicit and implicit, was we're just not going to accommodate you if you have a religious. [00:32:27] Speaker 02: I have a question on that, because there is some mixing and matching between employment law and accommodation and the constitutional right. [00:32:38] Speaker 02: And so what I'm kind of searching for [00:32:40] Speaker 02: is once you get down to the details of like, well, I didn't get my hearing or I didn't like how they treated the accommodation, because there's exemption and there's accommodation, what is the best case we can look at for accommodation and a constitutional right? [00:33:02] Speaker 00: I would point the court to Perry, Davis v. Shear, and Loudermill, the cases that I mentioned previously. [00:33:12] Speaker 00: Moving with what little time I have left on our First Amendment claims, one of the things that I would have amended to add, which was a document that we were not aware of when we wrote this complaint, is the guidance from the Office of Financial Management that [00:33:26] Speaker 00: instructed agencies to review all accommodation decisions every 60 days. [00:33:31] Speaker 00: So this idea that medical is only temporary and religious is permanent, that does not comport with the guidance that was provided to the agencies. [00:33:40] Speaker 00: And even more fundamentally than that, that itself is treating a secular, a comparable secular activity more favorably than religious. [00:33:47] Speaker 00: The fact there is even an option for a temporary accommodation under a secular basis, and that was not an option under religious, [00:33:54] Speaker 00: is violative of the free exercise clause, particularly in the context. [00:33:57] Speaker 02: You have a religion. [00:33:58] Speaker 02: It's not like pregnancy. [00:33:59] Speaker 02: Right. [00:33:59] Speaker 02: It's not going to go away. [00:34:00] Speaker 00: Certainly. [00:34:00] Speaker 02: I hope that it's not going to go away in nine months. [00:34:03] Speaker 00: That's true, Your Honor. [00:34:04] Speaker 00: But what could have gone away in nine months is the pandemic itself. [00:34:08] Speaker 00: We're operating under an Emergency Powers Act of the governor, which again, we're not challenging those Emergency Powers Act. [00:34:14] Speaker 00: But by their very nature, they're temporarily limited. [00:34:17] Speaker 00: So this is a context where providing someone a temporary accommodation really does make a difference. [00:34:22] Speaker 00: that person with a secular temporary accommodation, if it's a 60 day, if it's a 14 day, we don't know when this emergency is going to resolve. [00:34:31] Speaker 00: And because this is a governor's proclamation, not legislative, it is going to resolve at some point. [00:34:37] Speaker 00: So that secular individual receiving the temporary accommodation might be able to, for lack of a better term, run the clock out on the pandemic itself or run the clock out on the emergency power. [00:34:48] Speaker 00: So it is actually treating a comparable [00:34:51] Speaker 00: secular activity better than a religious one. [00:34:54] Speaker 00: And we have a line of cases that are clearly established, starting from Sherbert to Yoder, Thomas, Hobby, Lukumi, Calvary, Roman Catholic, and then Tandon and Fulton, all of which were decided prior to the termination of these individuals. [00:35:09] Speaker 00: That stand for the proposition that you cannot treat a comparable secular activity better than a religious one. [00:35:16] Speaker 02: And we show that- Let me ask you, if we were to disagree with your [00:35:21] Speaker 02: complaint is now drafted and is brought up on appeal on this 12b6. [00:35:27] Speaker 02: The two things I've heard that you might add, or it's this new thing, which first I've heard of this, this guidance to the agency, and you might pinpoint some other individuals, correct, for their individual capacity claims? [00:35:44] Speaker 02: Yes, Your Honor, and this is- Those are the two things that you might put in an amendment? [00:35:49] Speaker 00: and to make more clear our seeking relief of prospective injunctive relief. [00:35:55] Speaker 00: And I think this is one of the fundamental problems that we have with Rule 12 issues within qualified immunity. [00:36:03] Speaker 00: A lot of the government's argument today was fact intensive. [00:36:08] Speaker 00: And as the non-moving party, I don't think they get to put those type of facts into the record where this is based exclusively on our complaint. [00:36:15] Speaker 00: It's difficult for this court to decide large constitutional issues on a non-existent factual record and that's why it's It's difficult. [00:36:25] Speaker 00: It's difficult position for courts to be in where we have dismissals based on qualified immunity particularly where the court is required to construe it and all of the Authority that's available and the facts are taken as true. [00:36:37] Speaker 02: We're not construing the authority in any particular way it's the facts, but it but here the question is [00:36:44] Speaker 02: overriding question in the entire appeal is trying to pinpoint the legal issue. [00:36:50] Speaker 02: And that doesn't have to do so much with the facts. [00:36:53] Speaker 02: Let's say we assume a constitutional violation based on how everyone might construe the facts, and they would be in your client's favor. [00:37:01] Speaker 02: We still have to get past this constitutional barrier. [00:37:05] Speaker 02: So that's what I've been focusing on. [00:37:08] Speaker 02: And I appreciate your focus on the facts, but I don't think it answers the question that we're faced [00:37:14] Speaker 00: Well, perhaps just as a last piece, your honor, to help guide the court there with the Fulton case, and then going back through Tandon, Roman Catholic archdiocese, and the cases that those rely upon. [00:37:28] Speaker 00: Those are cases that all predate the decision to terminate these folks over their religious objections. [00:37:34] Speaker 00: And that, I would suggest to the court that having to choose between their free exercise rights and their government benefits is something that can only [00:37:45] Speaker 00: That choice can only be foisted upon someone if it passes strict scrutiny, which it would not be able to pass here. [00:37:52] Speaker 00: And that is an issue that we should be able to go back to the trial court and try, Your Honor. [00:37:55] Speaker 04: Thank you very much. [00:37:59] Speaker 04: Thank you, Your Honor. [00:38:00] Speaker 04: Thank you. [00:38:01] Speaker 04: We thank both counsel for their very helpful arguments this morning. [00:38:04] Speaker 04: And this matter will be submitted.