Opposition Brief — In Re America's Frontline Doctors, et al., Petitioners

No. 21-295

IN THE

Supreme Court of the United States

_____________

In re AMERICA’S FRONTLINE DOCTORS, et al.,

Petitioners

ON PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF MANDAMUS

EMILY T. KUWAHARA

Counsel of Record

KRISTIN MADIGAN

SUZANNE RODE

URI NIV

CROWELL & MORING LLP

515 South Flower

Street, 40th Floor

Los Angeles, CA 90071

(213) 622-4750

ekuwahara@crowell.com

CHARLES F. ROBINSON

NORMAN J. HAMILL

KATHARINE ESSICK

UNIVERSITY OF

CALIFORNIA

Office of General

Counsel

1111 Franklin Street

8th Floor

Oakland, CA 94607

Counsel for Respondents Kim A. Wilcox, in his

official capacity as Chancellor of the University of

California Riverside, et al.

i

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................... 1

STATEMENT ............................................................ 1

REASONS TO DENY THE PETITION ................... 3

I.

This Petition Is a Patent Attempt

to Circumvent the Restrictions

on Appealability From an Order

Denying a TRO. ................................... 4

II.

Petitioners Cannot Satisfy Their

Burden of Showing a Clear and

Indisputable Right to Mandamus

Relief. ................................................... 5

III.

Petitioners’ Questions Presented

Were Not Presented Below and

Rely on Faulty Assumptions. .............. 6

IV.

Article III Is a Bar to the Petition

Because Petitioners Lacked

Standing at the Outset, or Their

Claims Are Moot. ................................. 7

CONCLUSION .......................................................... 8

ii

TABLE OF AUTHORITIES

Page(s)

Cases

America’s Frontline Doctors v. U.S.

Dist. Court,

No. 21-71209 (9th Cir. Aug. 11,

2021) .......................................................................3

America’s Frontline Doctors v. Wilcox,

No. 5:21-cv-01243 (C.D. Cal. Jul. 30,

2021) ...................................................................3, 7

Bankers Life & Cas. Co. v. Holland,

346 U.S. 379 (1953) ................................................5

Bauman v. U.S. Dist. Court,

557 F.2d 650 (9th Cir. 1977)..................................3

Cheney v. U.S. Dist. Court for Dist. of

Columbia,

542 U.S. 367 (2004) ................................................1

Kerr v. U.S. Dist. Court for N.D. Cal.,

426 U.S. 394 (1976) ............................................3, 5

Off. of Personnel Mgmt. v. Am. Fed’n of

Gov’t Emps.,

473 U.S. 1301 (1985) ..............................................4

Religious Tech. Ctr. v. Scott,

869 F.2d 1306 (9th Cir. 1989)................................4

Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017), and

cert. denied, 138 S. Ct. 448 (2017) .........................4

iii

Statutes

28 U.S.C. § 1651(a)......................................................1

1

INTRODUCTION

Respondents Kim A. Wilcox, Chancellor of the

University of California Riverside; Howard Gillman,

Chancellor of the University of California Irvine; The

Regents of the University of California; and Michael

V. Drake, President of the University of California

(collectively, “Respondents”), respectfully request

that the Petition for Writ of Mandamus be denied.

Petitioners here seek a common law writ of

mandamus under 28 U.S.C. § 1651(a), which this

Court has described as “a ‘drastic and extraordinary’

remedy ‘reserved for really extraordinary causes.’”

Cheney v. U.S. Dist. Court for Dist. of Columbia, 542

U.S. 367, 380 (2004). Such a writ may only be issued

if the petitioners meet the threshold criteria of having

“no other adequate means to attain the relief [they]

desire[]” and where the petitioners’ “right to issuance

of the writ is ‘clear and indisputable.’” Id. at 380-81.

Here, Petitioners fail to meet the basic threshold

criteria for this extraordinary relief. This Petition is a

transparent and meritless attempt to seek an

expedited review of the denial of a temporary

restraining order, and to circumvent the normal

procedures that govern appellate procedure and

review.

STATEMENT

This summer, the University of California (“UC”)

issued its COVID-19 Vaccine Policy (“Policy”)

applicable to employees and students. The Policy

requires, with limited exceptions, that students and

employees provide proof that they have been

vaccinated

against

SARS-CoV-2—the

novel

coronavirus which causes the deadly disease COVID19—as a condition of their physical access to campus

2

facilities. The purpose of the Policy is to facilitate the

protection of the health and safety of the University

community and that of the general public. Petitioners’

Appendix B, at pp. 7, 11 (District Court Order). UC’s

Policy is the product of consultation with UC

infectious disease experts and ongoing review of the

evidence from medical studies concerning the

dangerousness of COVID-19 and emerging variants of

concern. Id. at p. 4.

Petitioners filed a 325-page ex parte application

for a TRO, seeking to enjoin UC from implementing

its COVID-19 vaccine Policy on the ground that the

Policy does not exempt previously infected

individuals from the vaccination requirement. See

Petitioners’ Appendix C (containing excerpts of

application). Consistent with the nature of a TRO,

Respondents had only 24 hours to respond. See

Judges Procedures of Hon. Jesus G. Bernal,

https://www.cacd.uscourts.gov/honorable-jesus-gbernal (last visited Sept. 20, 2021). In that time,

Respondents obtained short declarations addressing

the key points in opposition; had they had an

opportunity to fully respond in the context of a

properly noticed motion for preliminary injunction,

Respondents would have submitted a number of

expert declarations to support their arguments. See

Petitioners’ Appendix C, 1-ER-56 n. 4, 1-ER-61

(noting in opposition papers to TRO that UC

Defendants intend to submit evidence supporting the

Policy, including evidence from medical and public

health experts in opposition to any motion for

preliminary injunction).

The District Court did not hold a hearing and

denied Petitioners’ ex parte application for TRO and

order to show cause why a preliminary injunction

3

should not issue. The District Court held that

Petitioners were not likely to succeed on the merits,

failed to meet their burden to show irreparable harm,

and that the balance of equities and the public

interest weighed heavily against Petitioners’

requested relief. America’s Frontline Doctors v.

Wilcox, No. 5:21-cv-01243 (C.D. Cal. Jul. 30, 2021).

Petitioners’ Appendix B (District Court Order).

Following the denial of the TRO, Petitioners did

not file a motion for preliminary injunction.

Petitioners did, however, take the extraordinary

measure of filing a petition for writ of mandamus to

the United States Court of Appeals for the Ninth

Circuit, asking the Circuit Court to overturn the

District Court’s order. The Court of Appeals

summarily denied that petition, holding that

Petitioners “have not demonstrated that this case

warrants the intervention of this court by means of

the extraordinary remedy of mandamus.” America’s

Frontline Doctors v. U.S. Dist. Court, No. 21-71209

(9th Cir. Aug. 11, 2021) (citing Bauman v. U.S. Dist.

Court, 557 F.2d 650 (9th Cir. 1977)). Petitioners’

Appendix A (Ninth Circuit Order).

This Petition for Writ of Mandamus followed.

REASONS TO DENY THE PETITION

“‘[O]nly exceptional circumstances amounting to

a judicial “usurpation of power” will justify the

invocation of this extraordinary remedy’” of

mandamus relief. Kerr v. U.S. Dist. Court for N.D.

Cal., 426 U.S. 394, 402 (1976). Petitioners fall far

short of meeting this high standard. First, this

Petition is a patent attempt to end-run the

restrictions on appealability from the denial of a TRO

and is not the proper subject for mandamus relief.

4

Second, Petitioners have no clear and indisputable

right to mandamus relief, as evidenced by the District

Court’s order denying Petitioners’ application for a

TRO. Third, Petitioners’ Questions Presented are not

properly before this Court because they were either

not presented below or rely on faulty assumptions and

unfiled declarations. Finally, Petitioners’ claims are

moot.

I.

This Petition Is a Patent Attempt to

Circumvent

the

Restrictions

on

Appealability From an Order Denying a

TRO.

No exceptional circumstances exist such that

Petitioners should be permitted to circumvent the

restrictions on the appealability of an order denying a

TRO by filing this Petition. “Ordinarily, an appeal

does not lie from the denial of an application” for TRO

because “such appeals are premature and are

disallowed ‘in the interests of avoiding noneconomical

piecemeal appellate review.’” See Religious Tech. Ctr.

v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (quoting

Kimball v. Commandant Twelfth Naval District, 423

F2d. 88, 89 (9th Cir. 1970)). This is especially true

where, as here, the parties did not participate in an

adversarial hearing in which each side to the dispute

had an opportunity to present full evidence. See Off.

of Personnel Mgmt. v. Am. Fed’n of Gov’t Emps., 473

U.S. 1301, 1305 (1985); Washington v. Trump, 847

F.3d 1151, 1158 (9th Cir. 2017), cert. denied, 138 S.

Ct. 448 (2017). Indeed, TROs are, by definition,

temporary, lasting no more than 28 days – during

which time the party may present its case for a

preliminary injunction.

5

Petitioners’ inability to appeal directly from the

denial of a TRO does not open the door to mandamus

relief. Petitioners could have filed a motion for

preliminary injunction and, if that motion were

denied, immediately appealed from the ensuing order.

Or, if as Petitioners contend, this case fits within

the narrow exception in which a motion for a

preliminary injunction would be futile, a direct appeal

may have been permitted from the denial of the TRO.

In other words, under Petitioners’ futility theory,

Petitioners should have filed a notice of appeal and

sought appellate review in the ordinary course.

Contrary to Petitioners’ assertions here (Pet. at 9), the

ability to directly appeal in those narrow

circumstances does not invite the filing of a petition

for writ of mandamus. “[E]xtraordinary writs cannot

be used as substitutes for appeals[.]” Bankers Life &

Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).

II.

Petitioners Cannot Satisfy Their Burden

of Showing a Clear and Indisputable

Right to Mandamus Relief.

Mandamus is available only where Petitioners

have a clear and indisputable right to relief, Kerr, 426

U.S. at 403, and Petitioners have made no such

showing. At bottom, the decision whether to issue a

temporary restraining order is a matter of equitable

discretion, not strict legal command, and thus a

rather inapt candidate for mandamus relief. And for

all of the reasons set forth in the District Court’s order

denying the TRO, Petitioners’ right to relief in this

case is neither clear nor indisputable. Petitioners’

Appendix C (District Court Order).

This is all the more so where Respondents did

not have a chance to present their full case in

6

opposition at the District Court. Petitioners now

argue that the lack of evidence submitted by

Respondents in response to the TRO supports the

granting of this Petition, going so far as to state that

Respondents’ declarations in opposition to the ex

parte application for TRO were “completely devoid of

scientific citations” and that “[Respondents’] experts

were unable to provide any scientific data” to rebut

Petitioners’ arguments. Petition at 7. But, such

arguments are precisely why appeals are not taken

from orders granting or denying TROs. Here, the

District Court did not hold a hearing, and

Respondents were not afforded an opportunity to

present expert declarations to more thoroughly rebut

Petitioners’ assertions.

III.

Petitioners’ Questions Presented Were

Not Presented Below and Rely on Faulty

Assumptions.

Respondents also object to the Questions

Presented by this Petition, as they were not properly

presented below and rely on faulty assumptions and

unfiled declarations.

The first question presented relies on a fact

that is no longer true. It asks whether the “District

Court commit[ted] an abuse of discretion by

neglecting to enforce Federal law re EUA.” It

assumes that the only COVID-19 vaccines available

are those authorized by the Food and Drug

Administration (“FDA”) for Emergency Use

Authorization. The FDA, however, has since approved

a COVID-19 vaccine on August 23, 2021. See

Comirnaty and Pfizer-BioNTech COVID-19 Vaccine,

FDA, https://www.fda.gov /emergency-preparednessand-response/coronavirus-disease-2019-covid-

7

19/comirnaty-and-pfizer-biontech-covid-19-vaccine

(last visited Sept. 20, 2021). Furthermore, the relief

sought from the District Court was an injunction of

UC’s Policy, not an enforcement of “Federal law re

EUA.” Petitioners’ Appendix C, 1-ER-99. Thus, the

question posed was not considered by the District

Court.

The second question presented relies on

evidence that was never submitted. Petitioners posit

an error in the standard of review and predicate it

upon the “undeniable scientific consensus” supported

by the purported declaration of Joseph A. Ladapo,

MD, PhD. From the legal briefing it appears

Petitioners hoped to tender evidence regarding

infection-induced

immunity

(called

“natural

immunity” by Petitioners) and the risk of injury from

COVID-19 vaccines. But, the purported declaration

was never presented to either the District Court or

the Ninth Circuit Court of Appeals. See Petition at 30

& Appendix.

IV.

Article III Is a Bar to the Petition Because

Petitioners Lacked Standing at the

Outset, or Their Claims Are Moot.

Finally, Article III is a bar to the requested relief.

Petitioners lacked standing either at the outset of

litigation, or their claims are now moot. On

September 24, 2021, Respondents filed a motion to

dismiss all claims in the District Court on these

grounds.1

Mot. to Dismiss, America’s Frontline

Doctors v. Wilcox, No. 5:21-cv-01243 (C.D. Cal. Sept.

Respondents also moved to dismiss all claims against The

Regents of the University of California and all state law claims

as barred under the Eleventh Amendment.

1

8

24, 2021) (Doc. 25). The hearing on the motion to

dismiss is set for October 25, 2021. Indeed, the

pendency of these motions to dismiss, not yet

addressed by the District Court, provides further

reason why mandamus with respect to the decision

below denying Petitioners’ request for a TRO would

be inappropriate.

All three Petitioners lack Article III standing.

For the reasons set forth in the motion to dismiss

pending in the District Court, the two student

Plaintiffs lack Article III standing because they have

no remaining claim of injury. Due to student privacy

laws, the factual basis of Respondents’ motion to

dismiss is subject to a motion to seal, and for that

reason, is not discussed further here. It is available

through the District Court, or can be provided by the

parties on request.

Petitioner America’s Frontline Doctors lacks

standing because it is not subjected to the Policy and

cannot demonstrate any likelihood that it would ever

be subjected to the Policy. Any derivative standing

that America’s Frontline Doctors may claim via the

individual Plaintiffs falls with the mootness of the

individual Plaintiffs’ claims.

CONCLUSION

The Petition for Writ of Mandamus should be

denied.

9

Respectfully submitted,

EMILY T. KUWAHARA

Counsel of Record

KRISTIN MADIGAN

SUZANNE RODE

URI NIV

CROWELL & MORING LLP

515 South Flower Street,

41st Floor

Los Angeles, CA 90071

(213) 622-4750

ekuwahara@crowell.com

Counsel for Respondents

Kim A. Wilcox, Howard

Gillman, The Regents of

the University of

California and Michael V.

Drake