Spreadnecks: COVIDIOTS, Anti-Maskers, Anti-Vaxxers, Etc.

[Lani]

The vaccination exemption complaint was dismissed on Friday. I posted the link in the Miki thread.

ETA: As of August '21 86+% of state employees have been fully vaccinated.

[Phoenix520]

Wow. Freddie is almost incoherent in that post. Bullshite doesn’t fall far, eh?

[Luke]

Thanks again, Lani. But Miki and Freddie Booth seemed SO SURE on this one! Who's going to break this to the Mikster? Foggy? Realist? Estiveo? She should really hear this tough news from one of her dear friends. Anybody can post on Miki's timeline: https://www.facebook.com/miki.booth

Lani posted this link to the dismissal: https://www.staradvertiser.com/2021/10/ ... employees/

Here's the order. Seems like the judge knows the Booth family, this is the ending (the last part of the last footnote): "it is absurd to suggest that the Secretary is liable under 42 U.S.C. Section 1983 because that statute prohibits constitutional deprivations under color of State law, something which Plaintiffs have provided no allegation occurred here and which they did not address in their briefing." "Absurd" (as in "patently absurd" makes another appearance: "Counsel’s assertion that Maui is a defendant or necessary party in this case so as to provide a point of comparison with Honolulu and its policy is patently absurd." Too also: "this argument from Plaintiffs assumes a world that does not currently exist in this case". How Boothian, right? It's a funny read.

The Federal Judge really seemed on the fence about this one, seems like Miki and Freddie were thisclose! Maybe Orly Taitz could have put them over the top, they love her in Hawaii.

Hawaii Covfefe.JPG (62.62 KiB) Viewed 1087 times

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Case 1:21-cv-00343-DKW-RT Document 68 Filed 10/22/21 Page 1 of 17 PageID #: 1476

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

KAIMI K. PELEKAI, et al., Plaintiffs, Case No. 21-cv-00343-DKW-RT

v STATE OF HAWAI‘I, et al., Defendants.

ORDER (1) GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS, (2) DENYING AS MOOT
PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION, AND (3)
DISMISSING THE COMPLAINT
WITHOUT PREJUDICE

When filing this lawsuit on August 13, 2021, three days before the initial

effective date of certain State and County-wide policies that were alleged to require

the “forcible administration” of a vaccine against COVID-19, Plaintiffs 1 alleged

that the policies were pre-empted by federal law. Plaintiffs further alleged that the

policies violated their constitutional right to the free exercise of religion by imposing

“burdensome and equally-offensive requirements as a condition of employment….”

Roughly two months later, if Plaintiffs’ allegations are nothing else, they are

outdated. Most important, at least with respect to the 12 Plaintiffs currently before

the Court, none has been required or “forced” to take a COVID-19 vaccination.

And none will be. Instead, the challenged State policy allows an employee to

1
Plaintiffs are 10 employees of the City and County of Honolulu (Honolulu) and 2 employees of
the County of Maui (Maui).
Case 1:21-cv-00343-DKW-RT Document 68 Filed 10/22/21 Page 2 of 17 PageID #: 1477


forego vaccination completely and opt to undergo testing instead−an approach

Plaintiffs commend. That State policy is likewise the policy of the County of Maui.

As for Honolulu, the relevant Plaintiffs also need not be vaccinated, as they have all

been granted a religious exemption from doing so.

In other words, none of the Plaintiffs currently before the Court has been

injured by the policies they challenge, at least not based upon the allegations and

arguments they have made to-date. Therefore, as more fully set forth below, the

Court finds all of their claims to be moot, GRANTS the pending motions to dismiss

on that basis, and DISMISSES the Complaint WITHOUT PREJUDICE. The Court

further DENIES the pending motion for injunctive relief as moot.

PROCEDURAL BACKGROUND

On August 13, 2021, Plaintiffs, 10 employees of the City and County of

Honolulu (Honolulu) and 2 employees of the County of Maui (Maui), filed a

Complaint, asserting 14 causes of action challenging (i) an August 5, 2021

Emergency Proclamation Related to the COVID-19 Response by Governor David

Ige (the State Vaccine Policy), and (ii) an August 10, 2021 Directive from Mayor

Rick Blangiardi (the Honolulu Vaccine Policy, and, collectively, the Vaccine

Policies). Compl., Dkt. No. 1. Plaintiffs claimed to have brought this action “on

behalf of all other similarly situated persons[,]” specifically, “all current and future

first responders on the Islands of Oahu and Maui subjected to the current [Vaccine

2

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Policies].” Id. at ¶¶ 28-29. The Complaint named as defendants the State of

Hawai‘i (State), Governor David Ige (Governor), Honolulu, Honolulu Mayor Rick

Blangiardi (Mayor Blangiardi), Maui, Maui Mayor Michael Victorino (Mayor

Victorino), and Secretary Xavier Bacerra (Secretary) of the U.S. Department of

Health and Human Services (HHS) (collectively, Defendants).

The 14 causes of action in the Complaint are as follows: (1) federal

preemption because the Vaccine Policies “require” Plaintiffs to be vaccinated

“against their will”; (2) declaratory relief that the Vaccine Policies violate the “laws

of nations”; (3) violation of 21 U.S.C. Section 360bbb-3(e)(1)(A)(ii) because

COVID-19 vaccines are “investigational” products under Emergency Use

Authorization (EUA) and, thus, Plaintiffs must “consent” to their administration; (4)

violation of substantive due process because of the “forcible administration” of the

COVID-19 vaccines; (5) violation of procedural due process because the COVID-19

vaccines are “experimental”; (6) violation of “international law” because the

COVID-19 vaccines are “nonconsensual” and “experimental”; (7) violation of equal

protection because vaccinated employees are not subject to testing; (8) violation of

the Fifth Amendment right to bodily integrity because “[t]here is reason to believe

that some courts would find COVID vaccine mandates inconsistent” with U.S.

Supreme Court precedent in Jacobson v. Massachusetts, 197 U.S. 11 (1905); (9)

violation of substantive due process because Plaintiffs have been deprived of their


3

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right to direct their personal medical care; (10) violation of equal protection because

vaccinated and unvaccinated individuals are “arguably indistinguishable”; (11)

violation of 21 U.S.C. Section 360bbb-3 (Section 360bbb-3) because polymerase

chain reaction (PCR) tests are “investigational” under an EUA and, thus, Plaintiffs

must “consent” to their use; (12) violation of Section 360bbb-3 because the Vaccine

Policies do not allow Plaintiffs the option to refuse PCR testing; (13) violation of the

Fourth Amendment right against unreasonable searches and seizures because the

Vaccine Policies are a “mandatory surveillance testing program”; and (14) violation

of the First Amendment right to the free exercise of religion because the Vaccine

Policies impose “burdensome and equally-offensive requirements as a condition of

employment….” Plaintiffs seek declaratory and injunctive relief with respect to the

Vaccine Policies. Compl. at 59-60. At the same time, Plaintiffs also filed a

motion for temporary restraining order and preliminary injunction (TRO motion).

Dkt. No. 2. Therein, Plaintiffs sought temporary and preliminary injunctive relief

prohibiting enforcement of the Vaccine Policies.

The Court set a briefing schedule and hearing date of September 8, 2021 on

the TRO motion. Dkt. No. 7. One business day before the scheduled filing of

Defendants’ response to the TRO motion, Plaintiffs filed a “supplemental” brief in

support of the TRO motion, along with numerous exhibits and declarations. Dkt.

No. 15. Therein, Plaintiffs reiterated that the Vaccine Policies violated, and were


4

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preempted by, federal law. Dkt. No. 15-2 at 1-15. Plaintiffs also, for the first time,

made arguments and allegations not in the Complaint related to the Vaccine Policies

and their impact on Plaintiffs’ religious beliefs. Id. at 15-20. In light of the timing

and unauthorized nature of this “supplemental” filing, the Court, while accepting the

same for purposes of a complete record, reset the briefing schedule on the TRO

motion and vacated the September 8, 2021 hearing date, noting that the hearing

would be re-scheduled upon completion of briefing. Dkt. No. 16.

Thereafter, the Court received oppositions to the TRO motion from the State,

Honolulu, and the Secretary, motions to dismiss from the same Defendants, and

motions for joinder from Maui and Honolulu. Dkt. Nos. 23, 25-31, 37-38. In

summary, the Defendants oppose any injunctive relief and, instead, argue that this

case should be dismissed. Among many other arguments in that regard, Honolulu

asserts that all 10 of the Plaintiffs employed by it have been granted a religious

exemption from the Honolulu Vaccine Policy and, thus, are not required to take a

COVID-19 vaccine. Dkt. No. 30-1 at 5. Honolulu argues, therefore, that

Plaintiffs’ claims are moot.

Plaintiffs then filed three replies in support of the TRO motion, each

responding to one of the oppositions filed by Defendants. Dkt. Nos. 39-41.

Plaintiffs have also filed three oppositions to the pending motions to dismiss. Dkt.

Nos. 44-46. In opposing Honolulu’s motion to dismiss, Plaintiffs argue, inter alia,


5

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that their case is not moot because they represent a “class” “with hundreds of

Plaintiffs”, the Honolulu Vaccine Policy is “capable of repetition yet evading

review[,]” and the Honolulu Vaccine Policy still contains “offen[sive] language”

that this Court can remedy. Dkt. No. 45-1 at 3-4. The Court has also received

Defendants’ replies in support of each of the motions to dismiss. Dkt. Nos. 54,

58-59.

With briefing complete on the TRO motion, the Court set the same for hearing

on October 15, 2021. Dkt. No. 49. The motions to dismiss were also subsequently

set for hearing on that date. Dkt. No. 50.

On October 14, 2021, the day before the scheduled hearing, Plaintiffs filed

another “supplement” in support of the TRO motion. Dkt. No. 64. Plaintiffs also

filed a motion for leave to file a first amended complaint. Dkt. No. 63. Among

other things, Plaintiffs assert that they wish to file an amended complaint in order to

“add subsequent events[,]” such as the federal government providing full approval

and EUA to vaccines manufactured by Pfizer. Dkt. No. 63-2 at 2. Plaintiffs also

state that they wish to add “[m]any other” individuals as named plaintiffs in this

case−several hundred individuals that Plaintiffs assert have not yet received vaccine

exemptions on religious grounds. Id. at 2, 4.




6

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On October 15, 2021, a hearing was held on the TRO motion and the motions

to dismiss. Dkt. No. 65. At the conclusion of the same, the Court took the pending

motions under advisement. This Order now follows.

STANDARD OF REVIEW

I. Motions to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move

for dismissal due to a lack of subject matter jurisdiction. “(S)tanding and mootness

both pertain to a federal court’s subject matter jurisdiction under Article III….”

White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A Rule 12(b)(1) motion can

consist of a facial or factual attack on jurisdiction. Safe Air for Everyone v. Meyer,

373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that

the allegations contained in a complaint are insufficient on their face to invoke

federal jurisdiction. By contrast, in a factual attack, the challenger disputes the

truth of the allegations that, by themselves, would otherwise invoke federal

jurisdiction.” In the latter scenario, a court “may review evidence beyond the

complaint without converting the motion to dismiss into a motion for summary

judgment. Id.

When a complaint is subject to dismissal, leave to amend should be given

when “justice so requires.” Fed.R.Civ.P. 15(a)(2). Justice does not require leave

to amend when (1) it would prejudice an opposing party, (2) it is sought in bad faith,


7

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(3) it would produce an undue delay in litigation, (4) it would be futile, or (5) there

has been repeated failure to cure a deficiency. Abagninin v. AMVAC Chem. Corp.,

545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysist West, Inc.,

465 F.3d 946, 951 (9th Cir. 2006).

II. Injunctive Relief

“A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction

is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20

(2008).2 When a party “has not shown any chance of success on the merits, no

further determination of irreparable harm or balancing of hardships is necessary.”

Global Horizons, Inc. v. U.S. Dep’t of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007).

Further, a plaintiff must show that “irreparable injury is likely in the absence of an

injunction.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008) (emphasis in

original); Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d

1150, 1160 (9th Cir. 2011) (“An injunction will not issue if the person or entity

seeking injunctive relief shows a mere possibility of some remote future injury or a

conjectural or hypothetical injury[.]”) (quotations and citations omitted).



2
The standards for a temporary restraining order and a preliminary injunction are substantially the
same. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir.
2001), overruled on other grounds by Winter, 555 U.S. at 20.

8

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In addition, before issuing an injunction, a federal court must satisfy itself that

subject matter jurisdiction exists. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514

(2006) (explaining that subject matter jurisdiction “involves a court’s power to hear

a case” and a court has an independent obligation to determine whether such

jurisdiction exists) (quotation and citation omitted); Church of Scientology of Cal. v.

United States, 920 F.2d 1481, 1490-91 (9th Cir. 1990) (affirming a district court’s

decision to dissolve a temporary restraining order when the court lacked subject

matter jurisdiction); Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d

719, 727 (9th Cir. 1983) (“A federal court may issue an injunction if it has personal

jurisdiction over the parties and subject matter jurisdiction over the claim….”).

DISCUSSION

As it must, the Court first addresses whether subject matter jurisdiction exists

in this case. Federal courts lack subject matter jurisdiction when, inter alia, the

case or controversy is moot. See White, 227 F.3d at 1242. A case is moot “when

interim relief or events have deprived the court of the ability to redress the party’s

injuries.” Am. Cas. Co. of Reading, Pa. v. Baker, 22 F.3d 880, 896 (9th Cir. 1994)

(quotation omitted).

Here, Defendants argue that Plaintiffs’ claims are moot for various reasons.

First, Defendants assert that Plaintiffs are not required to receive a COVID-19

vaccine because they have been granted exemptions from doing so. See, e.g., Dkt.


9

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No. 30-1 at 5.3 Second, Defendants contend that Plaintiffs need not receive a

vaccine subject to an EUA because the U.S. Food and Drug Administration (FDA)

has granted full approval to the COVID-19 vaccine from Pfizer-BioNTech (Pfizer

Vaccine). See, e.g., Dkt. No. 23-1 at 17.

As explained more fully below, the Court agrees that all of Plaintiffs’ claims

are moot due to intervening events, the arguments of Plaintiffs in their briefing,

and/or the fact that it is now clear that some of the Plaintiffs were never subject to an

injury in the first place.

As an initial matter, it is important to understand the numerous claims

Plaintiffs bring in the Complaint. Although 14 in number, those claims in toto

essentially challenge (1) the alleged “forc[ed]” vaccination of Plaintiffs, (2) the use

of vaccines under an EUA, and (3) the use of COVID-19 testing under an EUA.

None of those alleged injuries now exist, to the extent they ever did, or Plaintiffs no

longer contend that they are injuries at all.

First, and most importantly, none of the Plaintiffs is being forced to receive a

COVID-19 vaccine, whether under an EUA or not. In the case of the two Maui

Plaintiffs, they were never required to receive a vaccination under the State Vaccine

3
In its motion to dismiss, Honolulu asserts that its challenge to the Court’s subject matter
jurisdiction is a facial attack. Dkt. No. 30-1 at 3. That is not entirely accurate, however, because
the Complaint does not even allege that the Plaintiffs asked for an exemption from the Honolulu
Vaccine Policy, let alone received one. Instead, that information is knowable through evidence
submitted outside of the Complaint, see Dkt. No. 30-2 at ¶ 2, and thus, Honolulu’s argument in this
regard is more properly considered a factual attack. The construction of Honolulu’s argument,
though, changes nothing to the result herein.

10

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Policy. Rather, that policy, adopted by Maui, allows an individual to opt out of

vaccination and elect to be tested for the coronavirus instead. See Compl. at ¶ 33.

As for the 10 Plaintiffs employed by Honolulu, it is undisputed that all of them have

received religious exemptions from the Honolulu Vaccine Policy. See Dkt. No.

45-1 at 3. In this light, none of the Plaintiffs is being forced to receive a COVID-19

vaccination. See Wade v. Univ. of Conn. Bd. of Trs., 2021 WL 3616035, at *7-8 (D.

Conn. Aug. 16, 2021) (finding moot the claims of students who had sought and been

granted exemptions from a COVID-19 vaccination requirement). This affects

Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, and Fourteen.

Second, subsequent to filing the Complaint, Plaintiffs have taken the

consistent position that testing for the coronavirus is to be applauded. In the

Complaint, Plaintiffs alleged that testing violated certain statutory or constitutional

rights because testing was experimental and/or impinged on their ability to make

personal medical decisions. See e.g., Compl. at ¶¶ 156, 173, 175, 180 From the

moment of their responsive briefing, though, Plaintiffs have taken a very different

tact. Notably, Plaintiffs now argue that “rapid testing is the best and most effective

method to combat outbreaks of COVID-19 because it can detect when someone is

infected (i.e., contagious).” Dkt. No. 41 at 12; see also, Dkt. No. 45-1 at 16

(arguing that testing is a “[r]easonable alternative[]” to vaccination). Plaintiffs’

counsel confirmed this new position at the October 15, 2021 hearing by lauding


11

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Maui for having a testing alternative to vaccination. See 10/15/21 Hearing

Transcript at 19:25-20:8, Dkt. No. 66.4 These arguments are incompatible with the

allegations in the Complaint, which the Court therefore finds Plaintiffs to have

abandoned. In other words, Plaintiffs no longer assert any claim premised upon or

challenging testing. Cf. Digby Adler Group, LLC v. Mercedes-Benz U.S.A., LLC,

2015 WL 5138080, at *2 (N.D. Cal. Sep. 1, 2015) (finding the failure to respond to

an argument for dismissal of a claim to be an “abandonment” of the claim). This

affects Claims Seven, Nine, Ten, Eleven, Twelve, and Thirteen.

The Court finds none of Plaintiffs’ arguments to the contrary on the issue of

mootness to be persuasive. Plaintiffs first argue that their claims are not moot

because this is a “class action with hundreds of Plaintiffs….” Dkt. No. 45-1 at 3.

This case, however, at least currently, is neither a class action nor does it involve

hundreds of plaintiffs. Instead, while the Complaint may contain class allegations,

no certification motion has been filed, and no class has been certified or even

evaluated by the Court pursuant to Federal Rule of Civil Procedure 23. In other

words, this argument from Plaintiffs assumes a world that does not currently exist in

this case and, thus, does nothing to suggest their claims are not moot.



4
As the Court emphasized at the October 15, 2021 hearing, given Plaintiffs’ counsel’s approval of
Maui’s policy, which is, more accurately, the State Vaccine Policy, it would not appear that any
claim should be asserted against Maui or the State in this case. Counsel’s assertion that Maui is a
defendant or necessary party in this case so as to provide a point of comparison with Honolulu and
its policy is patently absurd.

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Next, Plaintiffs argue that the Honolulu Vaccine Policy is “capable of

repetition yet evading review.” Dkt. No. 45-1 at 3. A policy is “capable of

repetition, yet evading review” when “(1) the challenged action is in its duration too

short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable

expectation that the same complaining party will be subject to the same action

again.” Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)

(quotation omitted). Here, neither condition exists. First, the duration of the

Honolulu Vaccine Policy is not too short by any measure, given that, from the

document Plaintiffs have provided, there does not appear to be any date for its

cessation or expiration. See Dkt. No. 15-7. In other words, an individual could

challenge the Honolulu Vaccine Policy at any time, including if an exemption was

revoked.5 Second, Plaintiffs have provided no expectation that they will be subject

to the same action again.6 Instead, they simply regurgitate, without any

explanation, that the Honolulu Vaccine Policy is “capable of repetition yet evading

review.” See Dkt. No. 45-1 at 3. Parroting, however, does not make it so. As




5
Perhaps in recognition that the Honolulu Vaccine Policy could be challenged at any time,
Plaintiffs also argue that the policy is “ongoing” and, thus, their claims are not moot. See Dkt.
No. 45-1 at 4 (citing City of Houston, Tex. v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1429
(D.C. Cir. 1994)). Plaintiffs, however, provide no explanation for why the cases they cite are
applicable here.
6
In that regard, the Court notes that, in the Complaint, Plaintiffs do not even allege that they had
sought an exemption under the Honolulu Vaccine Policy, let alone that their exemptions had been
granted. Or that, once granted, the exemptions would be limited or conditioned in some fashion.
Or even that, once granted, revocation of the exemption was expected or threatened.

13
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explained above, the Honolulu Vaccine Policy is not evading any review, given that

it can be challenged at any time.

Next, Plaintiffs argue that the Pfizer Vaccine that has been fully approved by

the FDA is not available and, thus, they are still required to use an “experimental”

vaccine under an EUA. Dkt. No. 44-2 at 2-4; Dkt. No. 15-2 at 15. As an initial

matter, this argument does nothing to dispel the undisputed fact that none of the

Plaintiffs is required to receive a vaccine, irrespective of its approval or

“experimental” status. Even on its own terms, however, as the Secretary explains,

Dkt. No. 23-1 at 17-19, Plaintiffs ignore the same documents they rely upon in

making this argument. Notably, in an August 23, 2021 letter to Pfizer, the FDA

states that both the vaccine subject to an EUA and the fully approved version are of

the “same formulation” and can be used “interchangeably” to provide a vaccination

series “without presenting any safety or effectiveness concerns.” Dkt. No. 15-12 at

2 & n.8. In other words, according to the FDA, the EUA vaccine is no more

“experimental” than its fully approved analogue. In any event, because Plaintiffs

are not required to receive a COVID-19 vaccine, the type of vaccine they do not

have to receive is of no import.

Finally, Plaintiffs argue that, even if they are exempt from any vaccine

requirement under the Honolulu Vaccine Policy, the policy still contains

“offen[sive] language” that the Court can order stricken. Dkt. No. 45-1 at 3.


14
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Specifically, Plaintiffs appear to challenge the following language in the Honolulu

Vaccine Policy: “I understand that a request for a religious exemption based on

objections to specific vaccinations will not be granted.” Dkt. No. 15-7 at 6

(emphasis in original); 7 see Dkt. No. 45-1 at 1. Plaintiffs contend that this

language is unconstitutional because “[d]isallowing objections to a specific vaccine

nullify and neuters [sic] Plaintiffs’ sincerely held religious beliefs to object to a

specific vaccine.” Dkt. No. 45-1 at 1. Plaintiffs further assert that their objection

to the “specific” vaccines here is that they were all developed using aborted fetal cell

lines that run counter to their religious beliefs. Id. at 7.

This, however, is an argument searching for a problem. 8 Nothing in the

Honolulu Vaccine Policy prevents Plaintiffs from objecting to being vaccinated on

the ground that they oppose, on religious grounds, vaccines that have been

developed using aborted fetal cell lines. This is because that objection is a general

one: specifically, a general objection to the use of vaccines developed with aborted

fetal cell lines. At most, the Honolulu Vaccine Policy may not allow an employee

to make the following objection: “I object to the Pfizer vaccine on religious grounds

because it was developed using aborted fetal cell lines.” The policy, however, does

not prohibit an employee from making the following objection: “I object to all



7
In citing Dkt. No. 15-7, the Honolulu Vaccine Policy, the Court cites to the page numbers created
by CM/ECF in the top-right corner of each page, i.e., “Page 6 of 6.”
8
It is also a “problem” that was never alleged in the Complaint.

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vaccines that have been developed using aborted fetal cell lines on religious

grounds.” The latter is not an objection to a specific vaccine, is not prohibited by

Honolulu’s policy, and is the objection Plaintiffs themselves claim to want to make.

In this light, contrary to Plaintiffs’ assertions, there is no “offending” language for

the Court to strike from the Honolulu Vaccine Policy and, thus, their claims remain

moot for the reasons discussed herein.

Accordingly, the Court finds that all of the claims raised in the Complaint are

moot and DISMISSES them on that basis. Dismissal is without prejudice. 9


9
Although it is unnecessary to address the many other arguments raised in the motions to dismiss,
in order to provide some guidance, the Court makes the following observations. First, on the
current record, there appears no basis for any claim to be asserted against Maui, Mayor Victorino,
or the State, given that the vaccine policies that each has adopted are not being challenged.
Second, as for the Honolulu Vaccine Policy, as discussed, the language that Plaintiffs find
abhorrent in the exemption-form-guidance documents is not so because Plaintiffs can still object to
vaccinations on a general basis in the manner they contemplate. Third, with respect to Plaintiffs’
supposed challenge to the issuance of an EUA, it is noticeable in their briefing that Plaintiffs failed
to address the arguments from (1) the Secretary that Plaintiffs have failed to exhaust administrative
remedies with respect to these claims and the Court does not have jurisdiction under the
Administrative Procedures Act to review these claims, see Dkt. No. 23-1 at 16-17, and (2) the State
that Plaintiffs have no private right of action for their statutory claims, see Dkt. No. 26-1 at 21-23.
At the very least, Plaintiffs need to contemplate and address these matters should they decide to
pursue such claims. Further, Plaintiffs also misconstrue the relevant statutory language. In the
Complaint, Plaintiffs allege that, under Section 360bbb-3, they must “consent” to EUA products.
Compl. at ¶ 116. That, however, is not what the statute provides. Instead, the statute provides
that an individual administered an EUA product should be informed “of the option to accept or
refuse the administration of the product, of the consequences, if any, of refusing administration of
the product, and of the alternatives to the product that are available and of their benefits and risks.”
21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). Here, Defendants have argued, see, e.g., Dkt. No. 23-1 at
25-26, and Plaintiffs have not disputed, that persons receiving an EUA COVID-19 vaccine have
been informed of their option to accept or refuse said vaccine. There, thus, does not appear to be
anything to these statutory claims. Fourth, it is not clear why the Secretary was named a
defendant in this lawsuit. The Complaint seeks to have the Vaccine Policies “stricken….”
Compl. at 60. The Secretary, however, did not adopt, and thus has no power to rescind, the
Vaccine Policies. Thus, contrary to Plaintiffs’ assertion, Dkt. No. 44-2 at 1, 26, the Secretary is
not a necessary party here. In addition, contrary to a further assertion from Plaintiffs, id. at 3, 28,

16
Case 1:21-cv-00343-DKW-RT Document 68 Filed 10/22/21 Page 17 of 17 PageID #:
1492



CONCLUSION

To the extent set forth herein, the motions to dismiss, Dkt. Nos. 23, 26, 30, are

GRANTED. Dismissal is WITHOUT PREJUDICE. The motions for joinder,

Dkt. Nos. 29, 37, 38, are GRANTED. Because all claims have been dismissed, the

motion for temporary restraining order and preliminary injunction, Dkt. No. 2, is

DENIED AS MOOT.

IT IS SO ORDERED.

Dated: October 22, 2021 at Honolulu, Hawai‘i.




De~
United States District Judge




it is absurd to suggest that the Secretary is liable under 42 U.S.C. Section 1983 because that statute
prohibits constitutional deprivations under color of State law, something which Plaintiffs have
provided no allegation occurred here and which they did not address in their briefing.

17

[Estiveo]

I posted the article without comment.

[Foggy]

Stupid judges keep ruling that the government has the right to ... y'know ... govern. Appalling.

[bill_g]

Law and Order only applies to Those People. (wink, nod)

[Volkonski]

Meanwhile in Brooklyn-

[Volkonski]

[Volkonski]

[Lani]

Unvaccinated Police Officers Could Become America’s Own Insurgents
Iraq and Egypt show how hard it is to get rid of a militarized security force.
https://foreignpolicy.com/2021/10/19/un ... tpcc=36946

As U.S. government bodies and businesses have rolled out vaccine mandates in the last few months, one group has proven stubbornly resistant: the police. CNN recently reported that as many as half of Chicago’s 12,000 police officers have refused to submit their vaccine status to the city. In Seattle, nearly 140 officers out of a force of 1,325 have so far refused to be vaccinated, while less than 50 percent of Virginia state troopers are unvaccinated. In Las Vegas and Atlanta, only a third of police officers have gotten the shots. In the nation’s capital, 42 percent of its police department’s officers remain unvaccinated.

The reasons why police are so resistant are complicated but not that different from other unvaccinated Americans: bad information, conspiracy theories, mistrust of health care, and politics, especially the role of police unions that have taken an increasingly right-wing stance. A few columnists and analysts have suggested the solution to this problem is to carry the vaccine mandates through and terminate officers who continue to resist them. Writing in the Washington Post, columnist Catherine Rampell argued that letting unvaccinated police officers quit over mandates would be good for public health and could contribute to reform because there is an overlap between vaccine-resisters and “bad cops.” It’s an argument that no doubt resonates with the pandemic-weary vaccinated who also support broader police reform.

But as much as it may feel good, there are reasons to worry that such an approach could backfire in ways Rampell and others may not have imagined. There are two important lessons from the Middle East regarding the current controversy over vaccinate mandates and law enforcement.

Americans like to believe they are different and the political pathologies and problems that seem endemic in other parts of the world do not happen in the United States. Yet, they do happen there. The last few years have put paid to some, but not all, of those illusions. At an abstract level, the problem of police reform in the United States is not all that different from Egypt after the uprising that overthrew former Egyptian President Hosni Mubarak, when the country was abuzz with what many hoped would be positive change.

[bob]

Yahoo!: Kyrie Irving's silence on Barclays Center lockdown speaks volumes:

The parallels are uncanny. A prominent conspiracy theorist proudly lets misinformation fester, and when his supporters turn violent in the name of his cause, storming the very institution he represents, he goes silent.

When you are an NBA star whose season is ripped from ex-President Donald Trump's Jan. 6 playbook, you are doing something wrong. Brooklyn Nets guard Kyrie Irving should reconsider the company he is keeping.

In a scene reminiscent of the insurrection at the U.S. Capitol nine months earlier, protesters chanting "no vaccine mandate" and "let Kyrie play" pushed past a barricaded Barclays Center entrance before Sunday's game against the Charlotte Hornets, forcing security to lock down the arena. One was armed with a pair of baseball bats. Another sported a swastika. Most were vocally anti-vaccination. No one was hurt, thankfully.

Irving, an opponent of New York City's COVID-19 vaccination requirement to play in Brooklyn, was nowhere to be seen on Sunday, also barred from the premises and mute to his 26 million followers on social media.

Irving claims to be "a voice for the voiceless," or at least that is what anonymous sources close to him had us believe in a story leaked to The Athletic's Shams Charania earlier this month. When Irving has lent his voice, he has spent an inordinate amount of time nonsensically circling a stance sans supporting evidence.

In light of Sunday's events, consider Irving's 25-minute anti-media rant on Instagram Live on Oct. 13. Long after he declared, "I do not talk to pawns," Irving again described the media as "puppets" to his 15.4 million Instagram followers, repeating in one form or another, "Nobody's going to hijack my voice. Nobody's going to take the power away from me that I have for speaking on these things. ... I'm real enough to stand up when I feel like I'm being put in an f'ed up position. ... I'm not going to be used as a person in this agenda."

Too late. Irving's voice was hijacked Sunday and leveraged for an anti-vaccination agenda, like it or not.

[scirreeve]

Montana AG threatened a hospital and dispatched a State Police officer to the hospital trying to get them to treat a COVID patient with dewormer. Hospital refused to do that.

A special legislative counsel will investigate allegations that Attorney General Austin Knudsen abused his power to intervene on behalf of a patient at a hospital in Helena.

The Montana State News Bureau first reported that staff at St. Peter’s Health said they were threatened by three public officials, which included Knudsen, over the care of a COVID-19 patient.

Hospital staff declined the patient’s request to be treated with Ivermectin, which is not approved for use against COVID.

Knudsen dispatched a Montana Highway Patrol officer to the hospital and denied allegations that his actions were threatening.

Democratic legislative leaders called for an investigation into the matter, saying the attorney general abused his power.

Republican Senate President Mark Blasdel and Speaker of the House Wylie Galt released a statement saying the allegations are serious, and the Legislature’s special counsel will examine relevant public records to better understand what happened.

https://www.mtpr.org/montana-news/2021- ... ey-general

[bob]

SF Eater: Despite Being Shut Down by the City, the Burger Overlords of San Francisco’s In-N-Out Are Still Allowing Indoor Dining:

The SF Department of Health says it’s investigating a complaint that the restaurant is allowing indoor dining and refusing to check vaccination cards

About a week after San Francisco Department of Public Health forced the city’s only location of cult-favorite burger chain In-N-Out to suspend indoor dining due to the company’s refusal to enforce city health mandates, the restaurant is under investigation again for allowing diners to continue to eat inside — essentially also refusing to follow the city’s latest directive. Since announcing it would not enforce the city’s vaccination mandate, the company has catapulted itself to the center of the ongoing pandemic culture war, drawing support for its defiance from conservatives including former Vice President Mike Pence, who tweeted a photo of himself outside an In-N-Out restaurant on Friday.

In an email to Eater SF on Monday, the health department confirmed it received a complaint to the city’s non-emergency 311 line about diners eating inside the restaurant located at 333 Jefferson Street in the tourist-friendly Fisherman’s Wharf neighborhood. SFDPH is investigating further will take “take next steps to address any observed violations,” according to the statement.

* * *

In response to emailed questions about what steps the company is taking to enforce the suspension of indoor dining at the restaurant, a spokesperson for In-N-Out says in addition to the signs about indoor dining being unavailable, all orders are being packaged to-go. Beyond those measures “our Associates will help politely communicate that indoor dining is unavailable, as needed,” the statement says. Eater SF provided the photo of a person eating in the restaurant dining room on October 23 to the In-N-Out via email, but the company did not acknowledge it in its response.

[bob]

So a new antivax pastime is to highlight all of the animal cruelty that occurs during product testing. Specifically, all the experiments approved of (or funded by) the NIH, which employs Fauci. And then act outraged, as if Fauci is personally conducting the experiments.

I predict this newfound, inch-thin interest in animal testing is not going to lead to more money in PETA's coffers.

[Azastan]

So a new antivax pastime is to highlight all of the animal cruelty that occurs during product testing. Specifically, all the experiments approved of (or funded by) the NIH, which employs Fauci. And then act outraged, as if Fauci is personally conducting the experiments.

I predict this newfound, inch-thin interest in animal testing is not going to lead to more money in PETA's coffers.

Especially considering that the reason fetal stem cells are used for testing is because people complained about the cruelty to animals used as test subjects.

[Slim Cognito]

that explains the crazy twitter thread I somehow found myself in this morning.

[scirreeve]

So a new antivax pastime is to highlight all of the animal cruelty that occurs during product testing. Specifically, all the experiments approved of (or funded by) the NIH, which employs Fauci. And then act outraged, as if Fauci is personally conducting the experiments.

I predict this newfound, inch-thin interest in animal testing is not going to lead to more money in PETA's coffers.

Yep - Brand Nu has been all over this - many more similar posts on his FB.

Capture.JPG (43.43 KiB) Viewed 621 times

[AndyinPA]

https://www.msn.com/en-us/news/us/gop-l ... li=BBnb7Kz

The Michigan State Senate passed a series of bills Tuesday that would ban the enforcement of vaccine and mask mandates in that state's schools.

While the GOP-led Senate passed the measures in a partisan 19-15 vote, the bills will very likely be vetoed by Michigan Governor Gretchen Whitmer, a Democrat. Whitmer has previously shot down a number of laws aimed at banning the wearing of masks and vaccine requirements.



In addition to stopping mandates, one of the bills would also ban statewide emergency orders making students wear masks, while also banning mandatory COVID testing for asymptomatic cases.

The bills were drafted despite the fact that there are currently no statewide vaccine or mask mandates for schools in Michigan.

[bob]

Because we live in the worst timeline:

The ensuing whataboutism is predictable.

[Foggy]

He probably knew about it and didn't do anything, and he definitely didn't go to TFA's rallies and yell and scream about it to thousands of morons. So, y'know ... guilty as charged, yer honor.

[bill_g]

Fauci deliberately removed himself from any testing discussions to avoid the taint of scandal. Plausible deniability. That's how diabolical he is.

[p0rtia]

Fauci deliberately removed himself from any testing discussions to avoid the taint of scandal. Plausible deniability. That's how diabolical he is.

Undeniable proof that he has masterminded the use of babies and puppies to further his mad scientist crimes.

Which explains why Hillary's emails had to be destroyed!

[bill_g]

Fauci deliberately removed himself from any testing discussions to avoid the taint of scandal. Plausible deniability. That's how diabolical he is.

Undeniable proof that he has masterminded the use of babies and puppies to further his mad scientist crimes.

Which explains why Hillary's emails had to be destroyed!

Shhh. Those are the details in the Maricopa router logs that went missing. Mums the word.

[bill_g]

Off Topic

This season of American Horror Story: Double Feature Part 2 puts a bow on recent American history - It was Mamie Eisenhour. The aliens that crashed at Roswell escaped, took over Mamie, and she convinced Ike to sign a treaty giving them Area 51 and 5000 human test subjects in exchange for advanced technology. In ensuing administrations, Ike read in the new presidents. JFK wouldn't stand for it. Considered it treason, and was going to blow the lid off it. So, Mamie and Nixon had JFK and Marilyn Monroe assasinated. LBJ was pissed, but he understood the significance, and went along with the agreement.

[Tiredretiredlawyer]