1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 RALPH DURAN, MICHAEL Case No. 22-cv-06120-CRB ESPARZA, 10

Plaintiffs, ORDER GRANTING MOTION FOR 11 JUDGMENT ON THE PLEADINGS v. 12 CALIFORNIA DEPARTMENT OF 13 FORESTRY AND FIRE PROTECTION, CALIFORNIA DEPARTMENT OF 14 HUMAN RESOURCES, JOE TYLER, ERAINA ORTEGA, 15 Defendants. 16 Plaintiffs Ralph Duran and Michael Esparza bring this action for declaratory and 17 injunctive relief against their employer, the California Department of Forestry and Fire 18 Protection (“CAL FIRE”), the California Department of Human Resources (“CalHR”), and 19 the respective heads of those agencies, Joe Tyler and Eraina Ortega. Compl. (dkt. 1) ¶¶ 1– 20 6, 11–14. Plaintiffs assert that Defendants forced their employees to conform with a 21 mandatory COVID-19 testing program that required the submission of personal and 22 medical information and waiver of their privacy rights to a third-party vendor, Color 23 Health, Inc. (“Color”). Id. ¶¶ 6–8. 24 Defendants move for judgment on the pleadings. See Mot. (dkt. 46). As explained 25 below, the Court finds this matter suitable for resolution without oral argument pursuant to 26 Civil Local Rule 7-1(b), and GRANTS the motion. 27 I. BACKGROUND 1 A. Parties 2 Plaintiff Ralph Duran is employed by CAL FIRE as a Fire Captain. Compl. ¶ 9. 3 Plaintiff Michael Esparza is also employed by CAL FIRE; he was a Fire Apparatus 4 Engineer until on or about January 23, 2022, when he became a Fire Captain. Compl. ¶ 5 10; Amended Answer (dkt. 43) ¶ 10. 6 CAL FIRE is a state agency that provides fire protection and stewardship services 7 throughout the state. Compl. ¶ 11. CalHR is the appointing authority of CAL FIRE 8 employees and acts as the representative of the governor in his capacity as “state 9 employer” for labor relations purposes. Compl. ¶ 12; FAA ¶ 12. Defendant Joe Tyler is 10 the Director of CAL FIRE; defendant Eraina Ortega is the Director of CalHR. Compl. 11 ¶¶ 13–14. 12 B. COVID-19 Testing Policy 13 In August 2021, CAL FIRE implemented a policy requiring its employees to either 14 show proof of vaccination against COVID-19 or undergo weekly testing. Id. ¶¶ 20–21. 15 Because they did not provide proof of vaccination, Plaintiffs were subject to weekly 16 testing. Id. ¶¶ 3, 9–10, 41–45. Under this policy, failure to comply could result in 17 disciplinary action up to and including dismissal. Id. ¶ 21. 18 CAL FIRE’s mandatory testing program was administered by a third-party vendor, 19 Color. Id. ¶¶ 4, 22. To undergo testing, Plaintiffs were required to disclose personal 20 information and sign privacy waivers. Id. ¶¶ 4, 22, 41, 43. These waivers allowed Color 21 to disclose their provided personal and medical information (including test results, genetic 22 data, and family health information) to third parties, including not only governmental 23 agencies and medical providers but also unidentified, possibly foreign, companies. Id. ¶¶ 24 23–40. Color retained broad leeway to disclose said information, including for purposes 25 unrelated to COVID-19 testing. Id. ¶ 26. 26 At some point after January 19, 2022, Color revised its policies, including its 27 privacy policy. Id. ¶¶ 30–31. Although the new policies seemingly limited the scope of 1 Color’s privacy waivers, Plaintiffs allege that the revised terms were so muddled that 2 Color retained the same leeway to disclose private data as before. Id. ¶¶ 30–40. 3 On September 15, 2022, CAL FIRE announced that it would begin “transitioning 4 away from mandatory testing.” Id. ¶ 50. Plaintiffs allege that it is not clear which aspects 5 of the program may continue in the future, but mandatory testing is not currently required. 6 Id. Plaintiffs further allege that Color retains their confidential information, that Color has 7 already disclosed confidential information to third parties, and that CAL FIRE may 8 reactivate the testing program at any time. Id. ¶ 51. 9 C. Procedural History 10 Plaintiffs assert seven causes of action for violations of the ADA, the Genetic 11 Information Nondiscrimination Act, Article I of the California Constitution, and the 12 Fourth, Fifth, and Fourteenth Amendments, seeking declaratory and injunctive relief. Id. 13 ¶¶ 57–105. 14 After Plaintiffs filed their complaint, Defendants answered, asserting sixty-six 15 affirmative defenses. See Answer (dkt. 21) ¶¶ 118–183. Plaintiffs moved to strike. Mot. 16 to Strike (dkt. 25). The Court denied the motion, giving Defendants leave to amend their 17 answer. Order Denying Mot. to Strike (dkt. 42). Defendants amended their answer, and 18 the instant motion followed. See Amended Answer; see also Mot.; Opp’n (dkt. 48); Reply 19 (dkt. 49). 20 II. LEGAL STANDARD 21 A Rule 12(c) motion for judgment on the pleadings is properly granted when the 22 material facts are not in dispute and the moving party is entitled to judgment as a matter of 23 law. Fleming v. Pickard,

(9th Cir. 2009). Because a Rule 12(c) motion 24 for judgment on the pleadings is “functionally identical” to a Rule 12(b)(6) motion to 25 dismiss, the same legal standard applies. Cafasso v. General Dynamics C4 Sys., Inc., 637

, 1054 n.4 (9th Cir. 2011). 27 Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon 1 complaint lacks either “a cognizable legal theory” or “sufficient facts alleged” under such 2 a theory. Godecke v. Kinetic Concepts, Inc.,

(9th Cir. 2019). 3 Whether a complaint contains sufficient factual allegations depends on whether it pleads 4 enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

(2009) (citing Bell Atlantic Corp. v. Twombly,

(2007)). 6 A claim is plausible “when the plaintiff pleads factual content that allows the court to draw 7 the reasonable inference that the defendant is liable for the misconduct alleged.”

at 8 678. When evaluating a motion to dismiss, the court “must take all factual allegations as 9 true and draw all reasonable inferences in favor of the nonmoving party.” Murguia v. 10 Langdon,

(9th Cir. 2023) (citing Usher v. City of Los Angeles, 828

(9th Cir. 1987)). 12 If a court dismisses a complaint for failure to state a claim, it should “freely give 13 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has 14 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the 15 part of the movant, repeated failure to cure deficiencies by amendments previously 16 allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, 17 [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Pub.,

, 532 18 (9th Cir. 2008) (quoting Foman v. Davis,

(1962)). 19 III. DISCUSSION 20 Defendants raise three individually sufficient grounds for a judgment in their 21 favor—sovereign immunity, standing, and mootness. Each is addressed in turn below. 22 A. Defendants Are Immune from Suit Under the Eleventh Amendment 23 Defendants assert that Plaintiffs’ claims are barred because the state agency 24 Defendants (CAL FIRE and CalHR) have not waived sovereign immunity and the state 25 officer Defendants (Tyler and Ortega) cannot be sued under Ex Parte Young,

(1908). Mot. at 12–16, Reply at 1–5. The Court agrees. 27 1. State Agency Defendants Have Not Waived Sovereign Immunity 1 immunity under the Eleventh Amendment, they have not waived that immunity, and 2 therefore the state constitutional privacy claim (the only claim brought against the agency 3 Defendants, see Compl. ¶¶ 79–87) is barred. Mot. at 12–13. Plaintiffs argue that Eleventh 4 Amendment immunity is an affirmative defense, which is the Defendants’ burden to prove, 5 and they have failed to do so. See Opp’n at 8 (citing ITSI T.V. Prods., Inc. v. Agric. 6 Ass’ns,

, 1291–92 (9th Cir. 1993)). 7 In general, the Eleventh Amendment prevents private parties from suing states 8 absent a valid abrogation or express waiver of that right. Hibbs v. Dep’t of Hum. Res., 273

(9th Cir. 2001). Although the Ninth Circuit has held that the assertion of 10 Eleventh Amendment immunity is an affirmative defense in ITSI T.V. Prod., Inc. v. Agric. 11 Ass’ns, Plaintiffs misapply ITSI. The court in ITSI addressed whether those defendants 12 could prove they qualified as “arms of the state.” ITSI,

. If they could not, 13 then those defendants would not be afforded the protections of the Eleventh Amendment. 14 See

1293–94. The court held that “[i]n general, a claim of Eleventh Amendment 15 immunity will occasion serious dispute only where a relatively complex institutional 16 arrangement makes it unclear whether a given entity ought to be treated as an arm of the 17 state.”

. 18 There is no such dispute in this case. The Ninth Circuit has expressly held that the 19 Eleventh Amendment applies to state agencies. Hibbs, 273 F.3d at 850. CAL FIRE and 20 CalHR are, based on Plaintiffs’ own allegations, state agencies. Compl. ¶¶ 11–12. 21 Furthermore, a state must either voluntarily invoke a federal court’s jurisdiction or make a 22 “clear declaration” that it intends to submit itself to federal jurisdiction to waive its 23 Eleventh Amendment rights. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. 24 Expense Bd.,

, 675–76 (1999); see also Port Auth. Trans-Hudson Corp. v. 25 Fenney,

(1990). Not only has the state not made a clear declaration of 26 waiver; it asserts the opposite. See Mot. at 12–13. 27 Accordingly, the Eleventh Amendment bars the state constitutional privacy claim 2. Ex Parte Young Does Not Apply to the State Officers 1 Defendants further assert that the Eleventh Amendment immunizes the state officer 2 Defendants, and that the Ex Parte Young exception does not apply because Plaintiffs seek 3 retrospective relief and the state officer Defendants do not have a “direct connection” to 4 enforcing the allegedly illegal aspects of the mandatory COVID-19 testing program. Mot. 5 at 14–15. Plaintiffs respond that, because Color retains the ability to use and share their 6 personal information, the harm is ongoing and prospective relief is possible. Opp’n at 9– 7 11. They also contend that the state officer Defendants have the power to discipline CAL 8 FIRE employees, and that it was the threat of such discipline that coerced Plaintiffs into 9 waiving their privacy rights.

at 13–14. 10 a. Plaintiffs Have Not Sufficiently Pled Ongoing Violations of 11 Federal Law 12 Although the Eleventh Amendment generally bars suits against states, Ex Parte 13 Young allows citizens to sue state officers in their official capacities for violations of 14 federal law. Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,

, 15 943 (9th Cir. 2013). Relief afforded under Ex Parte Young is limited, however. A court 16 “may award an injunction that governs the official’s future conduct, but not one that 17 awards retroactive monetary relief.” Pennhurst State Sch. & Hosp. v. Halderman,

89, 102–03 (1984). Accordingly, a complaint bringing claims against a state official must 19 allege “an ongoing violation of federal law” and seek “prospective” relief.1 Verizon Md., 20 Inc. v. Pub. Serv. Comm’n of Md.,

(2002). 21 Defendants argue that, because CAL FIRE’s testing program ended in September 22 2022, there are no ongoing violations of federal law and the relief that Plaintiffs seek is 23 necessarily retrospective. Mot. at 14. Plaintiffs counter that relief is proper under Ex Parte 24 Young if past violations continue to cause ongoing harm. Opp’n at 10 (citing Papasan v. 25

26 1 Plaintiffs’ cited cases support the necessity of prospective relief under Ex Parte Young. See 27 Opp’n at 15 (citing Comm. to Protect Our Agric. Water v. Occidental Oil & Gas Corp.,

, 1163–64 (E.D. Cal. 2017) (allowing a suit against a state officer defendant only 1 Allain,

(1984)). Plaintiffs point to a wrongful discharge suit, Doe v. 2 Lawrence Livermore Nat’l Lab’y,

(9th Cir. 1997) and a school record 3 expungement case, Flint v. Dennison,

(9th Cir. 2007), as examples where 4 past conduct (in the former, withdrawal of a job offer, in the latter, school disciplinary 5 proceedings) produced ongoing violations or harms (future denial of employment, a 6 negative school record) that could be redressed by prospective relief (reinstatement, 7 expungement). See Opp’n at 10–11. Plaintiffs argue that they have also sufficiently pled 8 ongoing harm, namely, that Color has disclosed and continues to disclose their personal 9 information to third parties, and that such disclosure constitutes an ongoing violation of 10 their privacy rights. See

at 11–13. 11 Although Plaintiffs do allege that Color has collected and disclosed Plaintiffs’ 12 personal information to third parties, the allegations do not rise to the level of plausibility 13 required by Iqbal. Color’s policies, as alleged in the Complaint, give Color broad license 14 to use and disclose information. Compl. ¶¶ 23–40. But Plaintiffs only allege “on 15 information and belief” that Color has disclosed their information to third parties, see

16 ¶¶ 6, 51(b); they do not otherwise allege any facts indicating that Color has actually 17 disclosed their information to third parties. See, e.g., Menzel v. Scholastic, Inc., No. 17- 18 CV-05499-EMC,

, at *2 (N.D. Cal. Mar. 19, 2018) (“[W]hile facts may 19 be alleged upon information and belief, that does not mean that conclusory allegations are 20 permitted. A conclusory allegation based on information and belief remains insufficient 21 under Iqbal/Twombly.”). Plaintiffs’ allegations focus on what Color may do with their 22 information under its policies. Compl. ¶¶ 23–40. But without any factually supported 23 allegations of actual disclosure in the Complaint, or any non-speculative allegations of 24 future disclosure, Plaintiffs only plausibly seek retrospective relief for their coerced 25 signing Color’s privacy waivers, rather than prospective relief for any future privacy 26 violations. 27 b. Defendants Do Not Have a Direct Connection to Alleged 1 Violations 2 Ex Parte Young also requires that the sued state official have some direct 3 connection with the enforcement of the illegal act; a generalized duty to enforce state law 4 or general supervisory power is insufficient. Ass’n des Eleveurs,

. 5 Defendants argue that the state officer Defendants did not enforce or administer the 6 mandatory COVID-19 testing program. Mot. at 15–16. Plaintiffs respond that the state 7 officers had authority over the discipline of CAL FIRE employees, and it was the threat of 8 discipline that coerced Plaintiffs into waiving their privacy rights. See Opp’n at 13–14. 9 Courts have generally held that Ex Parte Young only applies when the sued state 10 officer is charged with directly enforcing an allegedly illegal statute or state policy. In 11 Ass’n des Eleveurs, the governor was entitled to sovereign immunity because his only 12 connection to an allegedly illegal bird force-feeding statute was his general duty to enforce 13 state law.

. The attorney general, however, could be sued, because the bird 14 force-feeding statute explicitly authorized district attorneys to prosecute violations, and the 15 attorney general can exercise the powers of a district attorney.

at 943–44. This 16 distinction has held true in the COVID-19 context; the Eastern District of Washington held 17 that Governor Inslee could not be sued for his general supervision of Washington’s 18 eviction moratorium, even as the court allowed suit against the attorney general because he 19 possessed the requisite enforcement power. Jevons v. Inslee,

, 1096 20 (E.D. Wash. 2021). 21 Plaintiffs cite Comm. to Protect our Agric. Water v. Occidental Oil & Gas Corp., 22

(E.D. Cal. 2017) as an example of a sufficiently connected state 23 officer, but Occidental is inapposite. Although Occidental did hold that one of the 24 defendants was sufficiently connected to the enforcement of an illegal state process, the 25 court also distinguished other officials who were insufficiently connected, who are more 26 akin to the officers Plaintiffs sue here. Occidental, 235 F. Supp. 3d at 1162–64. 27 Occidental concerned the issuance of oil well permits, and the court held that Governor 1 permitting process, and fired a . . . supervisor based on her refusal to approve certain well- 2 drilling permits.”

at 1162–63. Even though the governor intervened in the process, 3 including to make personnel decisions, he lacked the “requisite enforcement authority to 4 directly issue the permits in question or to change the rules governing the permit process” 5 and was therefore immune.

Likewise, the court ruled a former state officer immune 6 because he was no longer in a position to provide injunctive relief. See

. On the 7 other hand, the court allowed plaintiffs to sue the current director of the state agency in 8 question, because he had a “direct role in approving the . . . permit decisions.”

at 1163– 9 64. 10 Here, the state officer Defendants are not directly connected with the enforcement 11 of an illegal statute or act. Plaintiffs allege that the state officer Defendants were causally 12 involved in coercing Plaintiffs to sign away their privacy rights; however, just as Governor 13 Brown had no direct authority over the well-permitting process in Occidental, Plaintiffs do 14 not allege that state officers controlled the selection of Color as a vendor, negotiated a 15 contract with it, or otherwise dictated what privacy policies Color could require CAL FIRE 16 employees to assent to. Indeed, Plaintiffs allege that the state’s Public Health Department 17 entered into an agreement with Color in August 2021; therefore, if any public official 18 retained the requisite authority to dictate the terms of the testing program, it is an official at 19 the Health Department, and not CAL FIRE, CalHR or their leadership. See Compl. ¶¶ 32– 20 34, 36–37. 21 In sum, Plaintiffs claim that Defendants’ enforcement of an otherwise legal 22 program2 has caused3 a secondary violation of federal law, and that Defendants are, 23 24 2 Plaintiffs emphasize they are not challenging the legality of the testing program itself. Opp’n at 7.

25 3 Plaintiffs have alleged a relatively tenuous causal relationship between the state officer 26 Defendants’ disciplinary authority and the harms the testing program caused. Although Plaintiffs do allege threatened disciplinary action for failing to comply with the testing program, Plaintiffs 27 ultimately complied with the program and did not suffer discipline. Compl. ¶¶ 41–48. Plaintiffs allege that one CAL FIRE employee was suspended for six months for refusing to comply with 1 through their disciplinary authority, ultimately responsible for Color’s violation of 2 Plaintiffs’ privacy rights. This is too tenuous a connection to suffice under Ex Parte 3 Young and the cases applying it. 4 Accordingly, the state officer Defendants are not directly connected to the alleged 5 violations of federal law, and the Ex Parte Young exception does not apply. While this 6 ground is individually sufficient to grant Defendants’ motion, the Court also addresses the 7 other grounds for dismissal, standing and mootness. 8 B. Plaintiffs Lack Article III Standing 9 To establish standing, a plaintiff must show they suffered an injury in fact that is 10 “concrete and particularized” and “actual or imminent”; that the injury was “fairly 11 traceable to the challenged action of the defendant”; and that it is “likely,” as opposed to 12 merely “speculative,” that the injury would be “redressed by a favorable decision.” Lujan 13 v. Defenders of Wildlife,

, 560–61 (1992) (cleaned up). The Court addresses 14 only one aspects of standing: whether the alleged injury is concrete.4 15 1. Plaintiffs Have Not Suffered a Concrete Injury 16 “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, 17 Inc. v. Robins,

(2016). Courts look to Congressional intent and long- 18 established common law harms to determine whether an injury is concrete.

at 340–41; 19 see also TransUnion LLC v. Ramirez,

(2021). “[V]iolations of the 20 right to privacy have long been actionable at common law.” Patel v. Facebook,

(9th Cir. 2019) (quoting Eichenberger v. ESPN, Inc.,

(9th 22 Cir. 2017)). A right to privacy encompasses “the individual’s control of information 23 concerning his or her person.” Eichenberger,

(quoting U.S. Dep’t of 24 Justice v. Reporters Comm. for Freedom of the Press,

(1989). The 25 Ninth Circuit has long included the control of medical information under the umbrella of 26 27 4 Defendants also argue that Plaintiffs do not have standing to seek injunctive relief, which requires a “showing of . . . real or immediate threat that the plaintiff will be wronged again.” City 1 cognizable privacy interests. See, e.g., Norman-Bloodsaw v. Lawrence Berkeley Lab’y, 2

, 1269 (9th Cir. 1998). 3 Data privacy cases in the Ninth Circuit emphasize the importance of either 4 disclosure or unlawful collection of personal information in cases involving privacy rights. 5 “[T]hat the plaintiffs’ sensitive information was disseminated to third parties in violation 6 of their privacy . . . is sufficient to confer standing.” In re Facebook, Inc., Consumer Priv. 7 User Profile Litig.,

, 784 (N.D. Cal. 2019). In Facebook, plaintiffs’ 8 allegations of disclosure—first to one individual and then to a host of other unknown 9 individuals and technology companies—constituted a concrete injury. Id. at 787. In 10 Eichenberger, the plaintiff alleged that defendant disclosed his information to a third party, 11 Adobe Analytics.

; see also In re Nickelodeon Consumer Priv. Litig., 12

(3d Cir. 2016) (“While perhaps “intangible,” the harm is also concrete 13 in the sense that it involves a clear de facto injury, i.e., the unlawful disclosure of legally 14 protected information.”). 15 Even without disclosure, a plaintiff can demonstrate a concrete injury if their 16 personal information was unlawfully collected. “We conclude that the development of a 17 face template using facial-recognition technology without consent (as alleged here) 18 invades an individual’s private affairs and concrete interests. Similar conduct is actionable 19 at common law.” Patel,

; see also Campbell v. Facebook, Inc.,

1106, 1119 (9th Cir. 2020) (“Plaintiffs’ position that this was being done without consent 21 meant that they claimed a violation of the concrete privacy interests that ECPA and CIPA 22 protect, regardless of how the collected data was later used.”). 23 Plaintiffs have alleged neither unauthorized disclosure nor unlawful collection, 24 taking them outside of the ambit of concrete interests in the caselaw. As discussed in the 25 prior section, Plaintiffs have not plausibly pled Color’s disclosure of their personal 26 information; they have merely pled Color’s right to disclose their information under its 27 policies. And because Plaintiffs do not challenge the validity of the testing program itself, 1 unlawful.5 2 Accordingly, Plaintiffs have failed to allege a concrete injury that confers Article III 3 standing.6 4 C. Plaintiffs’ Claims are Moot 5 A case that “has lost its character as a present, live controversy” is moot and no 6 longer presents a case or controversy amenable to federal court adjudication. Flint, 488 7 F.3d at 823 (quoting Am. Rivers v. Nat’l Marine Fisheries Serv.,

, 1123 (9th 8 Cir. 1997)). Because the Court has already held that Plaintiffs have failed to allege 9 ongoing harm because they have not plausibly alleged that Color has previously disclosed 10 their information, the mootness inquiry focuses on whether Defendants can cause future 11 harm by restarting CAL FIRE’s mandatory testing program. 12 1. Defendants’ Conduct Does Not Fall Under the Voluntary Cessation Exception 13 Plaintiffs assert that their case is not moot, in part because Defendants can reinstate 14 the mandatory testing program and once again force them to cede control of their personal 15 information to Color. Compl. ¶ 51(c). 16 “The Supreme Court has long held that ‘a defendant cannot automatically moot a 17 case simply by ending its unlawful conduct once sued.’” Brach v. Newsom,

, 18 12–13 (9th Cir. 2022) (quoting Already, LLC v. Nike, Inc.,

(2013)). The 19 voluntary cessation exception requires defendants “to satisfy ‘the formidable burden of 20 showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be 21 22 23 5 Even if Plaintiffs did challenge this collection as unlawful, courts have long held that requiring the collection of health information to the state for public health purposes does not automatically 24 amount to an impermissible invasion of privacy. See Whalen v. Roe,

(1977); see also Burcham v. City of Los Angeles,

, 702–04 (C.D. Cal. 2022). 25 6 Additionally, to demonstrate Article III standing, a plaintiff also must demonstrate that “it must 26 be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan,

(internal quotations omitted). While the parties did not brief the 27 issue of redressability, the Court is skeptical that any alleged injury related to Color’s retention of Plaintiffs’ data can be redressed by a favorable decision against Defendants. See, e.g., de Cristo 1 expected to recur.’” Campbell, 951 F.3d at 1120 (9th Cir. 2020) (quoting Friends of the 2 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

(2000)). Plaintiffs 3 contend that Defendants have failed to show that it is “absolutely clear” that they will not 4 restart the mandatory testing program. Opp’n at 18. 5 Generally, Ninth Circuit courts have treated COVID-19 policies as non-recurring 6 once retracted.7 In Brach v. Newsom, the Ninth Circuit held that California carried its 7 burden to demonstrate that COVID-19 school closures would not be reinstated.

12–15. Likewise, district courts have held that, once rescinded, COVID-19 policies are 9 unlikely to recur. See, e.g., Jeffrey-Steven of the House of Jarrett v. Ige, No. CV 21-00272 10 LEK-RT,

, at *6 (D. Haw. Nov. 12, 2021) (holding that there is no 11 “reasonable expectation that Plaintiff will be subjected to an inter-county travel quarantine 12 requirement in the future”); see also Abiding Place Ministries v. Newsom,

1068, 1072 (S.D. Cal. 2020) (holding that new county COVID-19 guidelines moot 14 ministries’ motion for a preliminary injunction); Ass’n of Oregon Corr. Emps. v. Oregon, 15 No. 6:21-CV-01485-MK,

, at *3–4 (D. Or. Aug. 9, 2022) (reasoning 16 that plaintiff’s assertion that the governor would reinstate Oregon’s vaccination executive 17 order “does not rise above mere speculation”); Bradshaw v. Dahlstrom, No. 32-cv-292, 18

, at *4–5 (D. Alaska Sept. 2, 2022) (recommending dismissal as state 19 agency voluntarily withdrew challenged regulations while the case was pending), report 20 and recommendation adopted, No. 32-cv-292,

(D. Alaska Sept. 16, 21 2022).8 22 In accord with the weight of authority on the issue, Plaintiffs only speculate that 23 24 7 Additionally, the Ninth Circuit “treat[s] the voluntary cessation of challenged conduct by government officials with more solicitude . . . than similar action by private parties.” Board of Trs. 25 of Glazing Health and Welfare Trust v. Chambers,

(9th Cir. 2019) (en banc) (quoting America Cargo Transp., Inc. v. United States,

(9th Cir. 2010)). 26 8 Other circuits have followed this pattern. See, e.g., Calvary Chapel of Bangor v. Mills,

40, 49–50 (1st Cir. 2022); Eden, LLC v. Justice,

, 170–72 (4th Cir. 2022); Resurrection Sch. v. Hertel,

, 529–30 (6th Cir. 2022), cert. denied,

1 || CAL FIRE might resume the testing program at some point in the future. See Eden, 36 2 || F.4th at 171; see also Ass’n of Oregon Corr. Emps.,

, at *4. Plaintiffs 3 || point to the language of the September 2022 notice announcing a transition away from the 4 || testing program, which did not explicitly end the testing program in perpetuity. But that 5 || notice states only that CAL FIRE will continue to comply with federal, state, and local 6 || guidelines, as well as COVID-19 reporting guidance. See Compl. 4] 50. CAL FIRE has 7 || never announced an explicit or conditional return to the testing program, and Plaintiffs 8 || have not alleged that testing has continued at any point since. See

9 Accordingly, Plaintiffs’ claims are moot. 10 || IV. CONCLUSION 11 For the foregoing reasons, the Court GRANTS Defendants’ motion for judgment on 12 || the pleadings. Because Plaintiffs’ claims fail on sovereign immunity, standing, and 13 || mootness grounds, the Court denies leave to amend as futile. See Leadsinger,

|| 532. 15 IT IS SO ORDERED. 16 Dated: August 7, 2023 a ‘->~— CHARLES R. BREYER 17 United States District Judge

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