[00:00:00] Speaker 02: Thank you, Your Honors. [00:00:01] Speaker 02: May it please the Court, Brent Mead, representing the State Defendants. [00:00:04] Speaker 02: I'd like to reserve five minutes for rebuttal. [00:00:08] Speaker 02: This Court should reverse the District Court on all counts. [00:00:11] Speaker 02: First, the District Court failed to apply the proper presumptions against preemption on the ADA and OSHA claims. [00:00:19] Speaker 02: On the ADA, the District Court enjoined Montana's law without an actionable ADA claim in front of it. [00:00:25] Speaker 02: On OSHA, the district court ignored the Supreme Court's guidance in NFIB in the plain text of the statute to find a vaccination requirement lurking in the general duty clause. [00:00:34] Speaker 02: On the Equal Protection Claim, the district court erred by creating a new bright line test that the state can only forward a single interest under rational basis. [00:00:42] Speaker 02: That ignores volumes of precedent. [00:00:44] Speaker 02: Once this court considers the state's express reasons for the classifications in 702, the law easily survives review. [00:00:51] Speaker 02: These errors were compounded by the irregular procedure below. [00:00:57] Speaker 02: First, discovery was done in a highly compressed fashion over a couple of months. [00:01:01] Speaker 02: Summary judgment briefs were done one week after the close of discovery. [00:01:05] Speaker 02: The district court terminated those summary judgment briefs without ruling on them. [00:01:09] Speaker 02: And the district court did not ask for or require legal briefs post trial. [00:01:15] Speaker 02: But that said, there are a couple facts that underlie all the claims in this case. [00:01:22] Speaker 02: First, the institutional plaintiffs, the physician offices, and the hospital required few if any mandatory vaccinations prior to Montana's law. [00:01:31] Speaker 02: For example, the Montana Nurses Association collectively bargained for no mandatory vaccinations. [00:01:37] Speaker 02: Second, before COVID, state and federal regulators, when they surveyed healthcare settings, they did not investigate a facility's vaccination policy or look to what vaccinations were required by staff. [00:01:53] Speaker 02: Third, all of the institutional plaintiffs freely granted exemptions from their required vaccines, and they all acknowledged they employed unvaccinated individuals prior to House Bill 702. [00:02:06] Speaker 02: And fourth and finally, House Bill 702 does not prevent uniform measures. [00:02:11] Speaker 02: It only prevents discriminatory actions based on vaccination status. [00:02:15] Speaker 02: So for example, a healthcare setting can require all employees to wear masks without running a foul of Montana's law. [00:02:26] Speaker 02: So on these facts, both on their face and in their inconsistencies, reversal is warranted. [00:02:30] Speaker 02: So I'll turn first to the ADA. [00:02:34] Speaker 02: The district court at 1ER26 viewed this case as an impossibility of compliance case. [00:02:43] Speaker 02: And that is simply contradicted by the record. [00:02:46] Speaker 02: For example, Five Valleys Urology, they testified that they had one individual who requested a leave of absence because they were immunocompromised. [00:02:56] Speaker 02: That leave of absence was granted. [00:02:58] Speaker 02: another employee requested to work in a segregated environment, that request was also granted. [00:03:03] Speaker 02: So simply on those facts, it was not impossible to comply with both the ADA and 702 in those cases. [00:03:09] Speaker 02: That's been the state's point throughout, that the ADA and 702, when [00:03:15] Speaker 02: you're looking at how they interact together, that must be a case-specific individualized determination. [00:03:21] Speaker 02: It can't be done as a district court did on an assumption that 702 prohibits compliance with the ADA in all cases. [00:03:34] Speaker 03: We're kind of at both ends of the spectrum, like an anecdote over here and a hypothetical impossibility over there. [00:03:41] Speaker 03: So I just want to ask you about one of the district court's findings where they said that to accommodate the immunocompromised patient, you must be able to know the vaccination status of an employee. [00:03:59] Speaker 03: Is that incorrect? [00:04:02] Speaker 02: Two things on that, Your Honor, is one, I don't think that that is necessary in the case of Five Valleys Urology, that it's not necessary to investigate the vaccination status of third parties to do what Five Valleys did in that case. [00:04:22] Speaker 02: That that's the state's point, is you don't need to take that next step of discriminating against third parties based on their vaccination status. [00:04:29] Speaker 02: And second, the district court ignored the variance within the vaccination policies. [00:04:34] Speaker 02: So, for example, Western Montana Clinic, they testified they never tracked vaccinations like MMR or Tdap. [00:04:44] Speaker 02: Five Alley's urology did not require any mandatory vaccinations and instead their physicians go to a hospital setting. [00:04:50] Speaker 02: They relied on the hospital. [00:04:52] Speaker 02: They did not themselves impose anything. [00:04:55] Speaker 02: And so I think the district court just assumed too much there on the knowledge. [00:05:01] Speaker 02: And second, you had inconsistent testimony between the plaintiffs themselves. [00:05:05] Speaker 02: Western Montana Clinic testified that if an employee declined their flu vaccine, that that gave Western Montana Clinic knowledge of that person's vaccination status. [00:05:16] Speaker 02: Providence testified the opposite. [00:05:18] Speaker 02: And so I think that's what the state's getting at with some of the Rule 52 issues are that there is inconsistent testimony among the plaintiffs that the district court did not enter clear findings on. [00:05:29] Speaker 04: But just to take a step back, the way I was understanding the district court's injunction was that it applied not just to the plaintiffs here, but to all healthcare settings. [00:05:36] Speaker 04: So these plaintiffs are, you know, one piece of that overall healthcare setting in your state. [00:05:44] Speaker 02: So yes, Your Honor, and I think that that's the error because it goes to what the state's been arguing all along is that in the ADA, you need to take specific cases to see if an individual can be accommodated short of inquiring into the vaccination status of a third party or treating that third party differently. [00:06:03] Speaker 02: The state has left the door open that in a specific case, [00:06:07] Speaker 02: If the only reasonable accommodation available to that immunocompromised individual requires differential treatment, then that's an affirmative defense to any hypothetical 702 enforcement action that comes along. [00:06:20] Speaker 03: So you would never get to impossibility under that theory? [00:06:25] Speaker 02: I don't think so, Your Honor, because under Wyeth and Playa, that's the state's argument, is that [00:06:32] Speaker 02: Under those cases, the Supremacy Clause can be used as an affirmative defense if the state were to seek an enforcement action. [00:06:40] Speaker 04: I'm not sure you need to go that far. [00:06:41] Speaker 04: I mean, it seems to me that that's one way in which it could come up. [00:06:44] Speaker 04: There might be other as-applied challenges that could be brought outside of an affirmative defense context, but this is a broader challenge. [00:06:52] Speaker 04: It's a facial challenge, so that's different. [00:06:55] Speaker 02: Your Honor, on preemption to the ADA, I don't think that that broader challenge is appropriate, because what we're talking about specific to CEPHNO2 is the state's historic police powers to prohibit discrimination, or if you want to view it differently, the state's police powers over vaccination policies. [00:07:16] Speaker 02: And the presumption is that those historic powers are left undisturbed unless Congress clearly intended to preempt them. [00:07:23] Speaker 02: And I don't think that you can draw that clear intent to preempt them here when in some cases, 702 protects the same individual as the ADA. [00:07:32] Speaker 02: If someone is immunocompromised and because of that status, they're unvaccinated, well, 702 protects them just the same. [00:07:44] Speaker 02: On the Title III claims, I do just want to highlight that the two individuals who testified at trial, both of them testified explicitly that they have never requested an accommodation. [00:08:00] Speaker 02: The district court committed clear error on that factual finding to say that they requested an accommodation. [00:08:08] Speaker 02: The district court also incorrectly relieved the plaintiffs of their burden under Title III. [00:08:14] Speaker 02: What we're talking about is public accommodations. [00:08:16] Speaker 02: We're not talking about a state policy. [00:08:18] Speaker 02: And the district court relieved the plaintiffs of their burden to show that a public accommodation employs a discriminatory policy or practice. [00:08:26] Speaker 02: They never identified what that policy or practice is in this case, and the district court was wrong to preempt a state law without meeting that essential element. [00:08:38] Speaker 02: So next I'll turn to the OSHA claim. [00:08:45] Speaker 02: The district court did correctly find that no specific federal standard preempts 702, and that's at 1ER31. [00:08:55] Speaker 02: The only standard at issue was the Hep B vaccination standard. [00:08:59] Speaker 02: That should have ended the preemption inquiry because Congress's clear intent under OSHA was that if a federal standard is in place, all state law is preempted. [00:09:10] Speaker 02: Whether it's complementary, more protective, it doesn't matter. [00:09:13] Speaker 02: It is an express preemption. [00:09:15] Speaker 02: But where a federal standard does not exist, state law is saved under 667A. [00:09:22] Speaker 02: And that's what happened in the Ramsey-Winch case. [00:09:24] Speaker 02: So even in a case where, in that case, it was workplace violence as a recognized hazard. [00:09:29] Speaker 02: OSHA declined to issue a specific standard on that issue and because of that, the employer in that case, it didn't follow that the general duty clause could preempt Oklahoma's law. [00:09:44] Speaker 02: Again, because Oklahoma's law in that case was an exercise of its historic powers. [00:09:49] Speaker 02: Here, [00:09:51] Speaker 02: OSHA, when it promulgated its COVID-19 ETS, it considered all the arguments the plaintiffs are raising before this court that there are inconsistent state laws. [00:10:02] Speaker 02: There are some laws like Montana's that protect someone's right to refuse a vaccination. [00:10:11] Speaker 02: It also considered the feasibility of abatement for employers. [00:10:17] Speaker 02: It considered that non-mandatory guidance from the CDC did not create a legal obligation under the general duty clause. [00:10:28] Speaker 02: So all of the arguments plaintiffs raise here were considered and rejected by the secretary in that ETS. [00:10:35] Speaker 02: That's why the secretary viewed an ETS as necessary, because they could not enforce a vaccination standard through the general duty clause. [00:10:44] Speaker 02: And so the necessary implication of that is Montana's law must be saved under that, because if a specific standard does not preempt Montana's law, then the general duty clause can't operate in the background to do the same thing. [00:11:05] Speaker 04: But the general duty clause could still be enforced by OSHA. [00:11:10] Speaker 02: Yes, Your Honor. [00:11:11] Speaker 02: And I think as OSHA is recognized, it is a significantly higher burden for OSHA to pursue that. [00:11:19] Speaker 02: But in this case, the vaccination policies that we cite in the record, those all predates have no two. [00:11:26] Speaker 02: And there is nothing in the record that OSHA ever sought a General Duty Clause enforcement action against those vaccination policies before 7.02. [00:11:36] Speaker 02: So there's nothing to suggest that the Secretary has ever intended the General Duty Clause to be used in this way. [00:11:43] Speaker 02: Again, I think that goes to the HEPB standard and the COVID-19 ETS that the times OSHA mentions vaccination, it is designed as a voluntary program, not as a mandatory program. [00:12:00] Speaker 02: On the equal protection claim, the district court, it simply ignored the state's reasons for the exemption. [00:12:10] Speaker 02: So 3B and then 313. [00:12:15] Speaker 02: in the gallinger in this courts [00:12:18] Speaker 02: it made clear that the court should focus on the reason for the classifications, not the underlying reason for the law. [00:12:28] Speaker 02: And so that tracks with what the governor's inventory veto did. [00:12:32] Speaker 02: We added the 313 facilities because in 2021, we could see the data that was coming down. [00:12:38] Speaker 02: Those facilities like nursing homes that have a vulnerable population in a congregate setting were suffering disproportionate mortality rates. [00:12:47] Speaker 02: And so we also had good reason to believe that CMS was going to come down with new regulations on those kinds of specific facilities. [00:12:56] Speaker 02: CMS did that a couple weeks later. [00:12:58] Speaker 02: That was entirely rational for the state to look at what was likely to happen and look at the mortality rates of those facilities were suffering that weren't suffered by other healthcare settings and treat them differently. [00:13:11] Speaker 02: And second, we could look to healthcare facilities compared to physician offices and look at that healthcare facilities, so hospitals and the like, they treat patients in somewhat more intensive settings. [00:13:27] Speaker 02: They have more strict healthcare infection protocols. [00:13:30] Speaker 02: They have things like NICUs. [00:13:32] Speaker 02: So the state could reasonably look at those facilities and say, we are going to treat them differently than we treat physician offices, which are a simple professional license. [00:13:41] Speaker 03: I had some trouble with your argument on the similarly situated, which of course doesn't answer the second part. [00:13:48] Speaker 03: Whether in any event, even if they're similarly situated, there's a rational basis for that. [00:13:55] Speaker 03: And that's because if you really look at the patients who are being treated, there is a certain fluidity between hospitals, physicians, offices, and others. [00:14:06] Speaker 03: So the state argument, as I read it, was, well, we have different licensing and regulatory. [00:14:12] Speaker 03: And I have to tell you, that didn't really bowl me over as a basis for saying that they aren't similarly situated. [00:14:21] Speaker 03: So I'd appreciate if you could respond to that. [00:14:24] Speaker 02: Yes, Your Honor. [00:14:25] Speaker 02: So certainly, there are patients who go between the facilities, but they are distinguishable based on Western Montana Clinic and Five Valleys. [00:14:36] Speaker 02: They're outpatient clinics. [00:14:37] Speaker 02: They don't have overnight beds. [00:14:40] Speaker 02: And so it's not just that a individual patient could go between the facilities at different points in their care. [00:14:46] Speaker 02: It's that the facilities themselves are designed to do different things. [00:14:50] Speaker 02: And so an outpatient clinic is not similarly situated to a hospital because they just don't have the same kind of specs, if you will. [00:15:00] Speaker 02: that they don't offer the overnight beds, and certainly compared to a nursing home, they don't have the same residential services, they don't have the same sort of congregate setting there. [00:15:13] Speaker 02: Unless your honors have further questions, I'll reserve for rebuttal. [00:15:18] Speaker 04: Okay, thank you, Mr. Mead. [00:15:34] Speaker 00: May it please the court, my name is Katie Mai and I'm arguing today on behalf of the appellees in this case. [00:15:40] Speaker 00: This case presents a straightforward application of federal preemption and constitutional principles to a very unusual state law. [00:15:49] Speaker 00: Montana Code Annotated 492312, by virtue of the way that it was drafted, interferes with the reasonable accommodation process, makes healthcare workplaces less safe, and unconstitutionally discriminates against certain healthcare settings, patients, and their employees. [00:16:09] Speaker 00: Section 312 is much broader than vaccine mandates and COVID-19. [00:16:14] Speaker 00: This law prevents healthcare settings from treating employees differently in any manner based upon immunity status, regardless of how it arrived, for any communicable disease. [00:16:26] Speaker 00: As found by the district court, this law prevents healthcare settings from utilizing the most critical tool in infection prevention. [00:16:34] Speaker 00: the district court's conclusions necessarily follow from its factual findings, which were largely uncontroverted at trial and appear not to have been seriously challenged on appeal. [00:16:47] Speaker 00: Let's look at the law itself. [00:16:48] Speaker 00: This is not a law that furthers public health. [00:16:52] Speaker 00: After a full trial on the merits, the district court correctly found that this law in fact makes healthcare settings less safe. [00:17:01] Speaker 00: The limited exceptions and exemptions to the statute, on the one hand, do not save it from preemption, and on the other, create the unconstitutional treatment of the similarly situated classes. [00:17:13] Speaker 00: While Section 313 provides an exemption to the prohibitions of 312 for nursing homes, long-term care facilities, and assisted living facilities, this allows them to comply with CMS and CDC guidance and regulations without fear of civil or criminal penalties, [00:17:31] Speaker 00: But there is no such exemption for physician offices or health care facilities, including hospitals. [00:17:36] Speaker 04: Let me just tell you my concern with the I'll just start with the ADA. [00:17:40] Speaker 04: The what the district court did is I understand it was enjoying the law in all health care settings and so essentially. [00:17:50] Speaker 04: held that the law was facially invalid, at least as to this population of people across the board. [00:17:56] Speaker 04: And the concern I have is whether the findings support that, because there's all kinds of different situations out there in which an accommodation request might or might not be reasonable. [00:18:06] Speaker 04: There might be other situations in which the request could be accommodated in other ways, short of discriminating against somebody on the basis of vaccination status. [00:18:16] Speaker 04: So how does this record support the scope of the district court's injunction? [00:18:20] Speaker 00: Because what 312 does is it removes the ability to even know the immunity status of the other employees. [00:18:27] Speaker 00: So if you have a disabled patient or employee who comes and needs to limit exposure to nonimmune individuals, what 312 does is it prohibits the employer, the healthcare setting, the public accommodation from even knowing that status, even being able to ask, even being able to look at a reasonable accommodation. [00:18:45] Speaker 04: Okay, but why does that tell us that there can't be other accommodations made in any given case? [00:18:52] Speaker 00: Well, I think that's asking us to prove a negative, which I believe that we did at trial, which is there is no other reasonable accommodation that would be effective. [00:19:00] Speaker 00: It was undisputed at trial that masks do not prevent blood-borne pathogens, and that there was their own expert testimony that masks sometimes are not effective. [00:19:09] Speaker 00: So there is no other accommodation for somebody who has to avoid contact with non-immune individuals. [00:19:16] Speaker 00: And we're not talking about a vaccine mandate here. [00:19:18] Speaker 00: We're talking about a situation where you can't reassign them. [00:19:20] Speaker 00: You can't tell them that they need to wear a mask or wear additional PPE in this particular environment. [00:19:26] Speaker 00: You can't do anything in any manner based on their immunity status, which is consistent with the district court's findings. [00:19:36] Speaker 00: They're factual findings. [00:19:38] Speaker 00: The district court found that hospitals and physicians treat and employ individuals that are disabled and immunocompromised, that those individuals are at an increased risk of harm from contracting vaccine-preventable diseases. [00:19:51] Speaker 00: and the institutional appellees received accommodation requests and individual plaintiffs asked to be accommodated by being treated by vaccinated staff. [00:20:00] Speaker 00: Mr. Meade made a statement up here that none of the individual plaintiffs had testified that they requested an accommodation, and that's not true. [00:20:08] Speaker 00: Ms. [00:20:08] Speaker 00: Page testified that she asked the receptionist at her oncologist's office if she could be treated by vaccinated staff and was told, we cannot tell you one way or another. [00:20:20] Speaker 00: Once those ADA's protections are triggered, the healthcare settings need to, one, know the immunity and vaccination status of the other employees that are around, and two, be able to take action based on that knowledge to effectuate a reasonable accommodation. [00:20:36] Speaker 00: Section 312 wholly prevents physician offices from engaging in this process at all. [00:20:41] Speaker 00: Under 312, they are not allowed to know the immunity status of their employees, and they are not allowed to treat their employees differently in any manner based on immunity status, no exceptions. [00:20:49] Speaker 04: How about with respect even to the health care facilities that are that are partially exempted where you're allowed to ask them and if they don't respond, you can then assume that they're not vaccinated and you can take other accommodations. [00:21:02] Speaker 04: How is the district court's injunction appropriate even as to a part of the statute that seems on its face to have an accommodation component to it? [00:21:09] Speaker 00: The accommodation component in that exception runs to the nonimmune individual. [00:21:13] Speaker 00: So the only way that that exception applies, the only way the hospital is free from the prohibitions of 312 is if they ask the immunity status and then two, if they implement reasonable accommodation measures [00:21:28] Speaker 00: to the nonimmune individual. [00:21:30] Speaker 00: That's how the statute is drafted. [00:21:31] Speaker 00: That's the plain language of the statute. [00:21:34] Speaker 00: So if you have a situation, let's take an immunocompromised disabled baby in a NICU, and you have a provider who is not vaccinated and not immune for pertussis, you have to remove that provider from that care interaction. [00:21:46] Speaker 00: There is no reasonable accommodation to give to the provider, the nonimmune person, and therefore you're stuck violating 312. [00:21:54] Speaker 00: You're not under that exception. [00:22:02] Speaker 00: 312 placed the appellees in an untenable position of either complying with the ADA or complying with the state law. [00:22:09] Speaker 00: The district court correctly concluded there was an irreconcilable conflict and that preemption was warranted. [00:22:16] Speaker 00: The district court also correctly concluded that the general duty clause of the OSH Act preempts 312 because of the specific workplace hazard in healthcare settings of vaccine preventable diseases. [00:22:30] Speaker 00: The district court found that while the risk of exposure is not necessarily unique to healthcare settings, it is different from the public exposure because the risk is an inherent and immutable aspect of a healthcare worker's job. [00:22:43] Speaker 00: These findings were supported by the factual record, and appellants cannot show that this finding was illogical, implausible, or without support. [00:22:51] Speaker 00: Because the appellants cannot escape the fact that one, the general duty clause applies, and two, 312 conflicts with it, they try to argue that the general duty clause cannot preempt state law. [00:23:03] Speaker 00: This argument ignores the basic principles of conflict preemption and would essentially eviscerate the general duty clause. [00:23:10] Speaker 01: This analysis is- So you're suggesting the general duty clause can be enforced in the absence of OSHA regulations. [00:23:17] Speaker 00: In this particular case, yes, the whole purpose behind this... Why would this particular case be different from any other case? [00:23:24] Speaker 00: Because this standard set by the state directly conflicts with the general duty clause. [00:23:30] Speaker 01: How does it conflict with the general duty clause? [00:23:32] Speaker 00: Because it makes health care workplaces less safe. [00:23:34] Speaker 01: But why wouldn't that be true in any other situation as well? [00:23:38] Speaker 01: I mean, if the general duty clause can be enforced here by the federal courts in the absence of OSHA regulations, why wouldn't the general duty clause just be generally enforceable by the judiciary? [00:23:48] Speaker 00: Well, because in this particular setting, there was a factual finding that it is an inherent immutable aspect of a healthcare worker's job, vaccine-preventable diseases are. [00:23:58] Speaker 00: And so, once there's that specific finding to that specific workplace, then the general duty clause controls. [00:24:04] Speaker 00: It's sort of like the Donovan case, right? [00:24:06] Speaker 00: Where OSHA came in and enforced the general duty clause and said, hey, employer, you can't not mandate that your... But that's an enforcement action by OSHA. [00:24:16] Speaker 01: That's very different from a private citizen suit that forces the judiciary to come in and supervise the workplace. [00:24:22] Speaker 00: Correct. [00:24:22] Speaker 00: But if you had a state statute that said you can't know the status of your employees as to whether or not they're wearing seatbelts, you can't do anything against them if they're not wearing seatbelts. [00:24:30] Speaker 01: It sounds like it might be a good opportunity for OSHA to step in or to adopt regulations. [00:24:34] Speaker 00: Well, potentially, but that's not the case that we have here. [00:24:37] Speaker 00: What we have here is a direct, irreconcilable conflict. [00:24:41] Speaker 01: And do you have any cases in which the judiciary has stepped in in the absence of OSHA action? [00:24:47] Speaker 00: Well, no, Your Honor, we don't. [00:24:49] Speaker 00: But in the Ramsey case, the court at least indicated that that was a possibility, that the general duty clause can act to preempt state laws if they are not consistent with the general duty clause. [00:25:02] Speaker 04: But I don't see how this is consistent with that 667A provision. [00:25:07] Speaker 04: That seems to foreclose this argument. [00:25:09] Speaker 00: Well, 667A, the whole purpose of that savings clause was to allow states to innovate in the area where OSHA has not spoken into further workplace safety. [00:25:18] Speaker 00: Here we have, again, this very unusual state statute, which makes workplaces less safe. [00:25:23] Speaker 04: Right, but OSHA hasn't spoken, right? [00:25:26] Speaker 00: Correct. [00:25:27] Speaker 00: That's correct. [00:25:28] Speaker 04: So what is doing the preemptive work here? [00:25:29] Speaker 04: I mean, I'm just not aware of any case that said this general duty clause can go ahead and preempt the state law, notwithstanding 667A in the absence of any OSHA regulation. [00:25:41] Speaker 00: Well, all of the cases that were discussed and all the cases that usually come up are cases where the standard does not conflict with the general duty clause in and of itself. [00:25:49] Speaker 00: And that's what we have here. [00:25:50] Speaker 00: Because typically, states are passing laws that are trying to make workplaces more safe for their workers, not less safe. [00:25:56] Speaker 00: And that's the problem that we have with this particular law. [00:26:01] Speaker 00: Removing the essential tool of a knowing immunity status in vaccinations interferes with the ability to comply with the general duty clause and acts as an obstacle to it. [00:26:13] Speaker 01: Would a decision by this court on your OSHA theory, would that suggest that employers were obligated to check on the vaccination status of their employees? [00:26:25] Speaker 00: No, because remember this statute doesn't just apply to vaccination status. [00:26:29] Speaker 00: So what it would suggest is that employers have to take infection prevention control procedures and policies and principles when they're in a health care setting because this is specifically limited to the workplace hazard in health care settings. [00:26:43] Speaker 00: And they are already doing that and they're already required to do those things. [00:26:46] Speaker 00: That's why this is so hard for health care settings is that they're forced to ignore standards of care. [00:26:52] Speaker 00: You know, in the Biden v. Missouri case, the Supreme Court recognized that vaccines are ubiquitous in American health care and vaccine requirements are ubiquitous in health care. [00:27:01] Speaker 04: But those are typically state law requirements, right? [00:27:04] Speaker 00: Typically, yes. [00:27:06] Speaker 04: Right. [00:27:06] Speaker 04: Well, this state has a different view on that issue, it seems. [00:27:10] Speaker 00: Correct. [00:27:11] Speaker 00: And by virtue of that view, has created workplaces that are less safe, which stands as an obstacle to the objectives of Congress in passing the Osh Act in the first place. [00:27:20] Speaker 03: But we don't have anything specific in OSHA. [00:27:24] Speaker 00: No. [00:27:24] Speaker 00: Although OSHA did try to [00:27:28] Speaker 00: you know, when they tried with the NFIB case, when they tried to implement that broad standard, once that was pulled back, there was a memo issued by OSHA which said, we are going to be enforcing sort of the COVID prior emergency standard through the general duty clause, not the vaccination mandate, but the other implications through the general duty clause. [00:27:53] Speaker 00: Turning to equal protection, sections 312 and 313, [00:27:57] Speaker 00: create classifications that affect similarly situated groups in an unequal manner. [00:28:02] Speaker 00: These statutes carve Montana's healthcare settings into three classes, exempted facilities, which are nursing homes, assisted living facilities, and long-term care facilities, healthcare facilities, including hospitals, and offices of private physicians. [00:28:16] Speaker 00: Because these 312 treats these classes differently, it also treats the patients who seek care in those classes differently, and it also treats the nurses who provide care in those classes differently. [00:28:26] Speaker 00: The district court did not commit a clear error in finding that these classes are similarly situated in all relevant respects. [00:28:34] Speaker 00: The district court factually found that exempted facilities, health care facilities, and physician offices all provide health care, in some cases the same type of care in the same building. [00:28:45] Speaker 00: The district court found that Appellee Providence operates a medical facility that operates all three classes on the same physical campus, a hospital, an exempted facility, and a physician office. [00:28:57] Speaker 00: The district court factually found that the staff and professionals moved throughout those three different classes. [00:29:04] Speaker 00: and that they actually share staff. [00:29:07] Speaker 04: I think the big issue here, right, is that we don't, you know, striking down state law classifications in the face of rational basis review is pretty rare. [00:29:17] Speaker 04: That's not something we customarily do. [00:29:19] Speaker 00: This is truly the example of a statute that fails rational basis scrutiny. [00:29:23] Speaker 03: Because, I mean, even if we take your point, which I asked the state about, that you could theoretically call these similarly situated, [00:29:32] Speaker 03: You still have to overcome this rational basis. [00:29:35] Speaker 03: And I think the state of Montana has given a number of reasons. [00:29:40] Speaker 03: as to why there's a basis. [00:29:43] Speaker 03: What's the response to that? [00:29:44] Speaker 03: Is it irrational? [00:29:46] Speaker 00: All of those reasons are patently irrational. [00:29:49] Speaker 00: You cannot possibly be rational for the appellants to protect a particular patient in the exempted facility where she sleeps and then remove those protections the next day when she has to go to her cancer doctor or if she gets sicker and then has to be admitted to a hospital. [00:30:04] Speaker 00: That's patently irrational. [00:30:06] Speaker 00: These same facilities treat the same patients. [00:30:11] Speaker 00: 312 is antithetical to public health. [00:30:14] Speaker 00: It elevates individual autonomy over the public health and safety. [00:30:18] Speaker 00: And while they claim that exemptive facilities treat a higher concentration of vulnerable patients, that's not demonstrated by the record where the factual evidence actually showed that hospitals, which are not exempt, treat more complex than higher risk patients. [00:30:33] Speaker 04: But we don't even need a record on this, right? [00:30:35] Speaker 04: We were allowed to hypothesize a rational basis. [00:30:38] Speaker 00: Correct. [00:30:39] Speaker 00: Yep. [00:30:41] Speaker 00: And regardless of whether it's the vulnerable patients that are protected within an exempted facility, those patients seek care in physician offices and in hospitals. [00:30:49] Speaker 00: There's no justification for appellants view that exempted facilities should be allowed to protect vulnerable patients, but offices of private physician and the hospitals are not allowed to protect that same patient. [00:31:01] Speaker 00: It's further demonstrated by their argument that there was an assumption about what CMS was going to do and require vaccinations. [00:31:08] Speaker 00: That assumption is patently false and was patently false at the time because they chose to include assisted living facilities, which are undisputedly not subject to the conditions of participation from CMS. [00:31:19] Speaker 00: The assisted living facilities would have never been subject to CMS's vaccine mandate. [00:31:25] Speaker 00: Their enforcement actions further demonstrate the statute's irrationality. [00:31:30] Speaker 00: Appellants found that a prison was afforded the health care facility exception, but statutorily, a physician's office is not. [00:31:40] Speaker 00: They found that a retreat for cancer survivors violated 312, concluding that a Zoom option for non-immunized attendees was unlawful discrimination, akin to discrimination on the basis of race or sex. [00:31:56] Speaker 00: Because the stated interest fails to have a logical connection to the classifications and the impact of 312, the district court appropriately concluded that it failed rational basis scrutiny and was unconstitutional. [00:32:12] Speaker 00: At the end of the day, the district court, after a full trial on the merits, found that Montana code annotated 492312 is fundamentally irreconcilable with federal law and thereby preempted. [00:32:25] Speaker 00: And the unconstitutional discrimination between the classifications that it draws fails to meet rational basis scrutiny. [00:32:33] Speaker 00: The district court supported its permanent injunction on multiple grounds, appropriately applying typical preemption and constitutional principles to an atypical law. [00:32:44] Speaker 00: If any of those grounds was correct, and we maintain that they all were, then this court must affirm the injunction. [00:32:51] Speaker 00: Thank you. [00:32:52] Speaker 04: Thank you. [00:32:54] Speaker 04: And we'll hear rebuttal. [00:33:03] Speaker 02: Thank you, Your Honors. [00:33:06] Speaker 02: So starting at equal protection, I think Tucson Women's Clinic is instructive here. [00:33:11] Speaker 02: There, the state of Arizona drew distinctions on abortion providers, even though those providers provided the exact same services to the exact same types of patients, but drew distinctions based on the size of the facilities and concerns over, I believe it was administrative need. [00:33:29] Speaker 02: And so this idea that states cannot regulate health care settings based on a single patient going between different health care settings, that's just contradicted by Tucson Women's Clinic. [00:33:44] Speaker 02: Second, the district court did not enter factual findings as to [00:33:50] Speaker 02: if you want to call it the relative number of immunocompromised patients treated by these facilities. [00:33:56] Speaker 02: And that's important because the state's interest in treating nursing homes differently was that it's the combination of a highly vulnerable population in a congregate setting that sets them apart. [00:34:06] Speaker 02: And yes, we included the state regulated facility assisted living facility in that because our state facility designation there shares those same characteristics. [00:34:17] Speaker 02: And on this, they don't attack that underlying regulatory scheme that treats hospitals differently than nursing homes, differently than physician offices. [00:34:29] Speaker 02: They live and operate under it day to day. [00:34:31] Speaker 02: It's in this specific case that they're trying to attack it, but they don't [00:34:35] Speaker 02: To be honest, I don't think the physician offices want that heavier-handed regulation that's imposed on healthcare facilities. [00:34:43] Speaker 02: That's because, as a matter of state regulation, we typically impose additional infection control policies on healthcare facilities. [00:34:55] Speaker 02: So I think turning to the 3B exception, it's been the state's view throughout this case that it's important to look at who the protection is intended to benefit. [00:35:09] Speaker 02: That I think when you look at 3BI and 3BII, the intended beneficiary of the protection is clearly patients, public, other employees. [00:35:20] Speaker 02: And that's the key here to looking at who the accommodation needs to go to is that it is [00:35:25] Speaker 02: the legislature was clear on that point. [00:35:33] Speaker 02: On Ms. [00:35:33] Speaker 02: Page's testimony, I'll just point the court to 2 ER at 80. [00:35:40] Speaker 02: Ms. [00:35:40] Speaker 02: Page was directly asked on cross-examination, did you ever treat to only be, did you ever request to be treated only by vaccinated staff? [00:35:49] Speaker 02: She affirmatively answered no. [00:35:51] Speaker 02: She also testified in that same dialogue that the reason she did not want to seek care, it was not because of the vaccination status of her providers. [00:36:01] Speaker 02: It was because of other sick patients in the waiting room. [00:36:04] Speaker 02: And I don't know that plaintiffs ever try and run against that testimony. [00:36:16] Speaker 02: And finally, on the ADA, [00:36:21] Speaker 02: The ADA does not guarantee a person's preferred accommodation. [00:36:25] Speaker 02: It guarantees a reasonable accommodation. [00:36:28] Speaker 02: And there is also a difference between effective and reasonable. [00:36:32] Speaker 02: A proposed accommodation can be effective, but nonetheless unreasonable. [00:36:36] Speaker 02: That's clear in the Title VII context in Peterson. [00:36:39] Speaker 02: That's clear in the Barnett case. [00:36:41] Speaker 02: That's clear in Willis. [00:36:43] Speaker 02: that if a proposed accommodation invades the rights of a third party, whether it's statutory or I think in Willis it was the collectively bargained rights, that is an unreasonable accommodation request. [00:36:58] Speaker 02: And so finally, I'll just go back to [00:37:04] Speaker 02: This court has to look at the face of the vaccination policies. [00:37:08] Speaker 02: The plaintiffs are trying to bring a unified case, but they ignore their internal discrepancies. [00:37:13] Speaker 02: The Montana Nurses Association collectively bargained for no mandatory vaccinations. [00:37:19] Speaker 02: Under their theory, that would mean they collectively bargained for a general duty clause violation. [00:37:25] Speaker 02: Providence recommended, but did not require any vaccinations. [00:37:31] Speaker 02: Western Montana Clinic only recommended the influenza vaccine, but 702 does not prohibit recommending a vaccine. [00:37:38] Speaker 02: And Five Valleys relied on healthcare facilities to provide the relevant vaccination policy. [00:37:45] Speaker 02: So when you look at that universe, it undermines their entire theory of the case. [00:37:51] Speaker 02: So unless your honors have further questions. [00:37:54] Speaker 04: Thank you very much for your presentation. [00:37:56] Speaker 04: We thank both counsel for the helpful briefing and argument. [00:37:59] Speaker 04: This matter is submitted.