One Left: Lawsuit Challenging Hawaii Gov's COVID Orders Voluntarily Dismissed ... And Other Developments

by Robert Thomas, InverseCondemnation, June 25, 2020

Important developments in the two lawsuits that are on file challenging Hawaii Governor David Ige's emergency proclamation and myriad supplemental proclamations.

First, we were all set to post the briefs and summarize the arguments for tomorrow's scheduled U.S. District Court hearing on a motion for preliminary injunction in the first case when earlier today, the plaintiffs in that case voluntarily dismissed the lawsuit without prejudice. As a result, the court vacated tomorrow's scheduled hearing and ordered the case closed:

EO: In light of Plaintiffs' Notice of Dismissal, Dkt. No. 26, the Court vacates the briefing requirements set forth in Dkt. No. 24 with respect to Defendants' Motion to Consolidate (Dkt. No. 22), and vacates the June 26, 2020 hearing on Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 15). All pending motions are deemed withdrawn and/or moot, and the Clerk is directed to close this case. (JUDGE DERRICK K. WATSON)(tyk) (Entered: 06/25/2020)

Hearing off, no excitement tomorrow. Why would they dismiss the case before Judge Watson? We don't know, but perhaps the Governor's motion to consolidate the two lawsuits might have had something to do with it. A crossover of issues looked to us like maybe the plaintiffs figured that their concerns would be addressed in the second case (Judge Otake)

Second, in the other (Judge Otake) case, the Judge rejected the U.S. DOJ's Statement of Interest supporting the plaintiffs, concluding it amounted to "an attempt by the United States to amend the Complaint in a case where it is not a plaintiff."

EO: After reviewing the United States' and the parties' responses, ECF Nos. 28-30, the Court will disregard the United States' Statement of Interest in deciding Plaintiffs' Application for Temporary Restraining Order and for Order to Show Cause Why Preliminary Injunction Should not Issue. The Statement of Interest amounts to an attempt by the United States to amend the Complaint in a case where it is not a plaintiff, as evidenced by its suggestion that the Court could compel Plaintiffs to amend the Complaint so it aligns with the Statement of Interest. Neither the United States nor Plaintiffs cite any instance where a court considered a statement of interest requesting relief on a claim that the plaintiff(s) did not present in the complaint and/or as a basis for emergency relief. Plaintiffs argue that the Statement of Interest appropriately discusses the Privileges and Immunities Clause as part of the right to travel, but the cases they rely on are inapposite. United States ex rel. Johnson v. Golden Gate Nat'l Senior Care, LLC, No. 08-CV-1194 (DWF/HB), 2016 WL 11031222, at *1 (D. Minn. June 1, 2016), addressed the government's Motion for Leave to File Statement of Interest in Response to Defendants' Memorandum in Support of Motion for Summary Judgment and "recognize[d] the unique status of the United States in False Claim Act ("FCA") actions... [in which] [c]ourts are particularly concerned with the peculiar posture of the United States in declined FCA cases." Id. (citations omitted); see also id. (quoting United States ex rel. McCready v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 114, 11920 (D.D.C. 2003) ("noting that the 'United States did not act improperly in submitting a statement carefully crafted to avoid involvement in the factual issues of this declined case and designed solely to protect its interests' where the purely legal statement of interest assisted the court 'in acting in the broader context of FCA jurisprudence.'")). Plaintiffs additionally rely on the concurrence in Republic of Austria v. Altmann, 541 U.S. 677 (2004), for the proposition that a statement of interest may include other grounds for dismissal, including "superior alternative and exclusive remedies." Id. at 714 (Breyer, J. & Souter, J., concurring). But offering additional bases for dismissal is incomparable to seeking an extraordinary remedy, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), on grounds not articulated by Plaintiffs.

When the United States has filed statements of interest in COVID-related cases, none sought to expand the scope of relief requested by the plaintiff(s), and the Court is unaware of any (nor has the United States pointed to any) that are analogous to the circumstances here.

The United States contends that the Local Rules set briefing limitations for parties. Non-parties, like the United States, are subject to the same rules as all other litigants who appear before the Court. If the United States continues to maintain an interest in this case, it will be expected to abide by all applicable rules, including the Local Rules.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/24/2020)

The court also ordered the plaintiffs to respond to yesterday's development (the Governor announced the "trans-Pacific testing program" whereby inbound travelers may avoid a mandatory two-week self-quarantine if they provide proof of testing for COVID). Kind of like a "virus pre-check program" as we see it. Provide proof, skip the quarantine. Or, skip the testing and shelter in place for two weeks upon arrival.

As far as we know, next week's hearing is still on the calendar. We shall keep following as the developments happen.

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Our thoughts on the Hawaii-law claims in these lawsuits: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

Our thoughts on the takings issues emergency orders present: Evaluating Emergency Takings: Flattening The Economic Curve.

SA: U.S. Department of Justice’s statement in Hawaii quarantine lawsuit tossed