[00:00:00] Speaker 03:
All right, next up is 24-1378, Timken versus South Denver Cardiology.

[00:00:07] Speaker 03:
Again, Mr. Shuck Snyder.

[00:00:09] Speaker 04:
Your Honor's David Shuck Snyder for the plaintiff's appellants.

[00:00:11] Speaker 04:
May it please the court.

[00:00:13] Speaker 04:
The Timken case adopted the Sweeney opinion with two exceptions.

[00:00:18] Speaker 04:
It added, made two comments.

[00:00:20] Speaker 04:
One, that the SDCA policy was separate from the Part 12 rules.

[00:00:26] Speaker 04:
And two, that this was just an employer vaccination mandate, like it was held in some other cases.

[00:00:34] Speaker 04:
We think that is incorrect.

[00:00:35] Speaker 04:
It's not just an employer vaccination mandate when the employer is a signatory to the CDC provider agreement and is a signatory to the federal wide assurance agreement with the federal government.

[00:00:49] Speaker 04:
both of which we've alleged that we are third-party beneficiaries because there are rights that affect, that are designed for the interest of my clients, the ones who are being subjected to investigational drugs.

[00:01:04] Speaker 04:
SDCA is sophisticated in this arena being an FWA signatory running IRBs and being a signatory to the provider agreement where it agreed to

[00:01:17] Speaker 05:
abide by the laws that govern these drugs.

[00:01:19] Speaker 05:
But you're not saying you're a third party beneficiary for purposes of a contract claim, which is ordinarily where we see beneficiary status being alleged.

[00:01:28] Speaker 05:
You're arguing that that is a gateway to a prosecuted 1983 claim.

[00:01:34] Speaker 04:
No, that's a separate from 1983.

[00:01:36] Speaker 04:
We brought third-party beneficiary actions under these contracts.

[00:01:40] Speaker 05:
So you are arguing a briefing.

[00:01:41] Speaker 04:
We are, but it wasn't addressed by the trial courts, by the district court.

[00:01:45] Speaker 04:
It wasn't addressed.

[00:01:46] Speaker 04:
So we believe that's error, reversible error.

[00:01:50] Speaker 04:
The other thing I mentioned was the Timken Court said that the SDCA policy was separate from Part 12.

[00:01:57] Speaker 04:
It is nowhere separate from Part 12.

[00:02:00] Speaker 04:
The SDCA policy specifically says that it was issued in compliance with Part 12.

[00:02:08] Speaker 04:
And Part 12 is very specific at what it requires the health care employers to do.

[00:02:15] Speaker 04:
They shall develop and implement a policy.

[00:02:19] Speaker 04:
They must get 100% of their employees

[00:02:24] Speaker 04:
injected with these drugs.

[00:02:26] Speaker 04:
They shall address certain topics in their policy.

[00:02:29] Speaker 04:
They shall report the workforce vaccination rate twice a month beginning on October 1st.

[00:02:37] Speaker 04:
This is in no way separate from part 12.

[00:02:42] Speaker 04:
And the issue that we have in Timken that we did not have in Sweeney is state action, because SDCA is not like UCHI, a government entity.

[00:02:54] Speaker 04:
But we say that they are acting under color of law because Colorado owed constitutional and federal statutory duties to the plaintiffs.

[00:03:06] Speaker 04:
They delegated those duties to the SDCA under this provider agreement.

[00:03:11] Speaker 04:
SDCA agreed to do that.

[00:03:13] Speaker 04:
They agreed to perform governmental functions.

[00:03:16] Speaker 04:
What are the governmental functions?

[00:03:18] Speaker 04:
Again, it goes back to what these drugs are.

[00:03:21] Speaker 04:
These are not FDA licensed drugs.

[00:03:24] Speaker 04:
If they were, there would be no need for a CDC program.

[00:03:28] Speaker 04:
There would be no need for the government to buy all of them.

[00:03:32] Speaker 04:
The reason that this is a governmental function is because only the federal government can authorize the use of investigational emergency use drugs.

[00:03:44] Speaker 04:
And only they, when they buy all of them and create a program for distribution,

[00:03:49] Speaker 04:
They designed it.

[00:03:51] Speaker 04:
It even says in the provider agreement, this is a collaboration by you, the signer, SDCA, and the federal government and the state government.

[00:03:59] Speaker 04:
It brings into color of state law when it requires the distribution to go through the state's immunization cooperative agreement it already has with the federal government.

[00:04:11] Speaker 03:
I would just be better viewed as just another health and safety mandate from either the state

[00:04:18] Speaker 03:
federal governments, and those typically wouldn't create a private right of action under the Constitution for an employee.

[00:04:31] Speaker 03:
What's the legal distinction?

[00:04:33] Speaker 04:
What kind of mandate are you referring to?

[00:04:37] Speaker 03:
Any sort of health requirement that the cardiology group has to comply with, cleanliness of the operating room.

[00:04:48] Speaker 04:
That's not going to create, you know, this is... No, but you don't have to use federal government property to achieve the cleanliness.

[00:04:57] Speaker 04:
Why does that matter?

[00:04:58] Speaker 04:
Constitutionally.

[00:05:00] Speaker 04:
Constitutionally, because if you're looking at what is, and we're looking at what is state action, what is under color of law, is if it's, how can a private, here's why, SDCA could never go directly to Pfizer.

[00:05:16] Speaker 04:
outside of the government and say, you know what, we want to do an employee vaccination mandate and we want to use your drug, the Pfizer BioNTech vaccine, the EUA one.

[00:05:26] Speaker 04:
We would like to buy it directly from you.

[00:05:28] Speaker 04:
It can't happen.

[00:05:30] Speaker 04:
The federal government owns all of them.

[00:05:32] Speaker 04:
The federal government said for distribution of these drugs, it must go through the CDC program.

[00:05:38] Speaker 04:
So there is no mechanism for SDCA to get the drugs in order to have the mandate.

[00:05:45] Speaker 04:
So unlike cleanliness, of course, they can clean their facility, but they don't need the federal government to help them or to do it.

[00:05:54] Speaker 04:
Here, they must go through the federal government.

[00:05:56] Speaker 04:
They must go through this federal program.

[00:05:58] Speaker 04:
There's no way for them to do this without the CDC program.

[00:06:02] Speaker 04:
That's why they're acting under the color of law.

[00:06:05] Speaker 05:
That argument is they're acting under the color of federal law, not state law.

[00:06:10] Speaker 04:
And that's why I mentioned the collaboration, the way it was designed, agreed.

[00:06:14] Speaker 04:
If the CDC program was not in existence and it was a direct relationship, yes, there would be no state law under which SDCA could come.

[00:06:23] Speaker 04:
But because the provider agreement says specifically, this is a collaboration, it must go through the state's immunization cooperative agreement that's already in place.

[00:06:34] Speaker 04:
So yes, they are acting under color of state law

[00:06:40] Speaker 04:
when they are mandating the use of the drugs that are owned by the government and exclusively available through the CDC program.

[00:06:56] Speaker 04:
What Timken also said was that it adopted the Sweeney decision

[00:07:01] Speaker 04:
Well, Sweeney said we didn't identify constitutional rights, but in Timken we did in paragraph 300.

[00:07:07] Speaker 04:
We said that the defendant's actions under color of state law and in deprivation of constitutional rights unlawfully subjected plaintiffs to the use of investigational medical products under threat of penalty.

[00:07:21] Speaker 04:
So we alleged constitutional grounds.

[00:07:23] Speaker 04:
We alleged federal statutory grounds.

[00:07:25] Speaker 04:
And again, we believe there is a private right of action

[00:07:30] Speaker 04:
I won't even say private right of action because a private right of action is different than a 1983 claim.

[00:07:35] Speaker 04:
A private right of action is one that is in the statute itself and says this is how you do it, like an EEOC Title VII type situation.

[00:07:44] Speaker 04:
A 1983 claim is different than a private right of action.

[00:07:46] Speaker 04:
It's simply the enforcement of a conferred right through 1983.

[00:07:54] Speaker 04:
Because they were signatories to the contract, because they were distributing federal property, they were joint actors with the federal government and the state government, because there has to be a distribution arm for the drugs.

[00:08:12] Speaker 04:
And these are the signatories to the contract.

[00:08:17] Speaker 04:
So I would like to reserve the balance of my time for rebuttal.

[00:08:20] Speaker 04:
Thank you.

[00:08:34] Speaker 00:
May it please the court, I'll reintroduce myself for the record.

[00:08:37] Speaker 00:
My name is Lauren Davison and I represent the executive director of the Colorado Department of Public Health and Environment, Appellee Jill Hunsaker-Ryan.

[00:08:46] Speaker 00:
I'll endeavor to leave five minutes of the time for counsel for SDCA to address the state action question.

[00:08:54] Speaker 00:
As with the previous case, which concerned nearly identical claims, the executive director respectfully requests this court affirm because there is no fundamental right at issue

[00:09:04] Speaker 00:
None of the statutes, regulations, or other documents plaintiffs rely on create enforceable rights through section 1983.

[00:09:12] Speaker 00:
And the executive director is entitled to qualified immunity on the 1983 claims.

[00:09:17] Speaker 00:
I'd like to quickly touch on a few points before getting into any more detail on these.

[00:09:22] Speaker 00:
So first, there were some questions earlier about what the statutes say as far as consequences.

[00:09:28] Speaker 00:
Neither the PREP Act nor the EUA statute says that it's a voluntary program without consequences.

[00:09:35] Speaker 00:
that there is an option to refuse or accept without consequence.

[00:09:40] Speaker 00:
Plaintiffs here exercise their option to refuse.

[00:09:44] Speaker 00:
Multiple courts have said there can be consequences for that refusal to accept the product when it is an employment condition.

[00:09:53] Speaker 00:
Next, I'd like to note that the PREP-X preemption provision cannot by itself create an enforceable right.

[00:10:01] Speaker 00:
We didn't cite this in our brief because we felt the preemption question was not adequately briefed in the opening brief, but this court has held in CNSP versus Santa Fe, and that's 755, federal appendix 845, that to enforce a statute's preemptive effects, the plaintiff must first plausibly allege that the statute itself confers a federal substantive right.

[00:10:28] Speaker 00:
The PREP Act here cannot confer any substantive right because it does not meet Tulevsky and Medina's stringent, restrictive, and demanding test, as the Supreme Court has described it.

[00:10:41] Speaker 00:
I would also note that the Court has made clear in Gonzaga and Medina that this restrictive test, as far as using unambiguous rights-conferring language, applies to both private rights of action brought directly under the statute

[00:10:57] Speaker 00:
or claims that seek to enforce the alleged right through 1983.

[00:11:01] Speaker 00:
So there's no difference here as far as that's concerned with the relevant case law.

[00:11:06] Speaker 00:
I would also note that as far as both the PREP Act and the EUA statute goes, both of them are framed in terms of the regulated persons or entities, which Gonzaga says cannot create federal rights.

[00:11:17] Speaker 00:
Both of them have an unmistakable focus on the Secretary of the Department of Health and Human Services obligations to ensure that

[00:11:26] Speaker 00:
Participants in these programs are informed of certain information.

[00:11:31] Speaker 00:
Both of the statutes also speak to national compliance with EUA requirements, not individual instances of refusing or accepting the product, which is similar to the FERPA statutes that were at issue in Gonzaga.

[00:11:45] Speaker 00:
Both statutes also contain limits on who can sue or what type of suits can be brought.

[00:11:51] Speaker 00:
And in two cases considering the exact claims at issue here,

[00:11:56] Speaker 00:
The Bridges case out of the Southern District of Texas and Brock versus Kaiser in, I believe, Oregon have said that because of those limitations, that indicates Congress intended to preclude Section 1983 enforcement.

[00:12:11] Speaker 00:
The statutes at issue provide nothing more than a benefit, not a federal right.

[00:12:15] Speaker 00:
The benefit is to be informed of certain information.

[00:12:17] Speaker 00:
That's it.

[00:12:18] Speaker 00:
Without meeting Medina's requirement of essentially using the word right to refuse, it cannot be found here.

[00:12:26] Speaker 00:
I'd also like to note, plaintiffs rely very heavily on the provider agreement.

[00:12:30] Speaker 00:
As a threshold issue, neither the executive director or CDPHE, they did not allege that they were signatories, particularly the executive director.

[00:12:38] Speaker 00:
CDPHE as an entity is not at issue on this appeal because the official capacity claims have been dismissed under the 11th Amendment.

[00:12:46] Speaker 00:
So we're only talking about the executive director and they did not allege she was in a signatory.

[00:12:50] Speaker 00:
So even if the provider agreement could create a right, which it can't because it wasn't created by Congress, it's not a statute, that can't support a claim here.

[00:12:58] Speaker 00:
I did want to briefly touch on the substantive due process piece.

[00:13:06] Speaker 00:
There was some discussion before about looking at, you know, there's been discussion of the efficacy of the vaccines.

[00:13:13] Speaker 00:
It's really important to note that whether or not this meets rational basis is looking at the time that it was implemented.

[00:13:19] Speaker 00:
We can't really use hindsight here.

[00:13:21] Speaker 00:
And many of those arguments were actually made very early on and have been rejected by multiple courts.

[00:13:28] Speaker 00:
And then most recently, the Carvalho case out of the Ninth Circuit reiterated what Jacobson had already stated, that it's not for the courts to question the scientific efficacy as long as there is enough scientific basis for the

[00:13:44] Speaker 03:
Give it a moment, we'll see.

[00:13:49] Speaker 03:
What'd you find out?

[00:14:04] Speaker 05:
What a super duper time we did.

[00:14:07] Speaker 03:
We'll try to power through.

[00:14:09] Speaker 03:
Okay, okay.

[00:14:11] Speaker 00:
Apologies.

[00:14:15] Speaker 00:
Oh, Leslie, I think I did just want to quickly note that in this case, unlike in the Sweeney case, the third-party beneficiary claim has been either abandoned or waived.

[00:14:25] Speaker 00:
There was no argument made on appeal in appellants briefing as far as that claim, and there is only one, actually only one mention of the phrase third-party beneficiary at all in the opening brief.

[00:14:37] Speaker 00:
So we would submit that claim is not actually before the court.

[00:14:40] Speaker 00:
and we're only looking at section 1983 claims here.

[00:14:44] Speaker 00:
Because we're only looking at section 1983 claims, this court has an easy avenue to affirm under qualified immunity as to the executive director.

[00:14:52] Speaker 00:
Notably, plaintiffs didn't really probably respond to this.

[00:14:57] Speaker 00:
They do raise a, or they concede, they concede that there's no

[00:15:06] Speaker 00:
clearly established rights here by arguing the ministerial duty exception.

[00:15:10] Speaker 00:
That is a very narrow exception that requires precise action that must be taken.

[00:15:15] Speaker 00:
And we don't have that in any of the statutes here.

[00:15:17] Speaker 00:
They're talking about what the secretary has to do, not what people or public health entities such as CDPHE has to do.

[00:15:25] Speaker 00:
No court has agreed with any of plaintiffs' asserted rights.

[00:15:28] Speaker 00:
No court has found an absolute and fundamental right

[00:15:32] Speaker 00:
constitutional or statutory right to refuse vaccination during the pandemic.

[00:15:37] Speaker 00:
The second, third, sixth, seventh, and ninth circuits have all held that COVID-19 vaccine regulations or policies do not violate a fundamental right.

[00:15:47] Speaker 00:
This court, the third, fifth, sixth, and ninth circuits have all rejected claims under the EUA statute.

[00:15:55] Speaker 00:
Even if we accepted plaintiffs' investigational drug theory, no court has found that mandating these specific drugs

[00:16:02] Speaker 00:
violates any constitutional or statutory rights.

[00:16:06] Speaker 00:
We've cited in both of our briefs to several cases that have already found that government defendants are entitled to qualified immunity on these types of claims.

[00:16:14] Speaker 00:
Four district courts in cases brought by plaintiffs' counsel with identical theories presented found that those government defendants were entitled to qualified immunity.

[00:16:24] Speaker 00:
So because plaintiffs cannot meet

[00:16:26] Speaker 00:
their burden to show that any of the rights allegedly violated were clearly established at the time of defendant's conduct.

[00:16:37] Speaker 00:
They would need to point to something from either this court or the Supreme Court that's on point in controlling.

[00:16:41] Speaker 00:
This court hasn't had the occasion to consider this particular theory, and neither has the Supreme Court.

[00:16:46] Speaker 02:
What would be the boundaries of something that is within the realm of clearly established law?

[00:16:52] Speaker 02:
It doesn't have to be this precise drug and this precise time, does it?

[00:16:56] Speaker 02:
Or do you think it does?

[00:16:58] Speaker 00:
I think yes, because they're relying on such a narrow theory.

[00:17:02] Speaker 00:
This court or the Supreme Court would have had to say, yes, under the EUA statute or the PREP Act,

[00:17:07] Speaker 00:
there's a right to refuse these drugs.

[00:17:10] Speaker 00:
There is a fundamental substantive due process right to refuse these drugs.

[00:17:15] Speaker 00:
Because they recognize, and they say Jacobson doesn't apply, but Jacobson is obviously a huge problem.

[00:17:20] Speaker 00:
Even under this theory, Jacobson's requirements are still met, as several circuit courts have already specifically found.

[00:17:27] Speaker 00:
So it would have to be fairly narrow.

[00:17:29] Speaker 00:
But even if we're looking broader, this court hasn't abrogated Jacobson in any way.

[00:17:33] Speaker 00:
It actually, early on in the pandemic,

[00:17:36] Speaker 00:
cited Jacobson when denying a preliminary or injunction pending appeal noting the state has the right to protect the public health during a public health emergency.

[00:17:47] Speaker 00:
So there's just nothing on point.

[00:17:48] Speaker 00:
And even if we're looking outside of the circuit, you know, to a wealth of agreement by other courts, there's no agreement.

[00:17:55] Speaker 00:
No one has agreed with this.

[00:17:57] Speaker 00:
And the one court that did for a moment agree with the theory of because these weren't traditional vaccines, it was unwanted medical treatment.

[00:18:06] Speaker 00:
Vacated that opinion that was the Ninth Circuit when it went on bonk it vacated the panel's opinion and said that's not correct This is not how we look at it Jacobson is broader than that so for those reasons We would submit that it still controls and qualified immunity bars all of their 1983 claims Unless the court has any further questions.

[00:18:25] Speaker 00:
I would respectfully request that it affirm.

[00:18:27] Speaker 00:
Thank you.

[00:18:28] Speaker 00:
Thank you counsel

[00:18:44] Speaker 01:
Well, good morning, Your Honors.

[00:18:45] Speaker 01:
My name is James Spung.

[00:18:46] Speaker 01:
May it please the court?

[00:18:47] Speaker 01:
I'm here on behalf of the other two defendants in the Timkin matter.

[00:18:51] Speaker 01:
That is, South Denver Cardiology and Troy Stockman.

[00:18:54] Speaker 01:
For ease of reference, I'll refer to both of them as SDCA.

[00:18:59] Speaker 01:
SDCA was dismissed on two independent bases.

[00:19:02] Speaker 01:
Number one, failure to allege the deprivation of a federally protected right.

[00:19:07] Speaker 01:
That's what a lot of the discussion is focused on, both in this case and the

[00:19:10] Speaker 01:
Sweeney matter before us.

[00:19:12] Speaker 01:
And then before even getting there, the district court dismissed SDCA for a threshold reason, and that is that appellants failed to allege state action.

[00:19:22] Speaker 01:
That's what I'll speak briefly about this morning.

[00:19:25] Speaker 01:
As the district court found, that conduct, the conduct being the implementation and enforcement of the vaccine policy, was SDCA's decision without any state involvement.

[00:19:37] Speaker 01:
It created a policy that complied with the state's rule.

[00:19:43] Speaker 01:
They controlled how that policy was enforced.

[00:19:45] Speaker 01:
That included who qualified for what exemptions, and most importantly, how to enforce their policy as to their specific employees, as SCCA's employees.

[00:19:56] Speaker 01:
And then in Appellan's case, of course, SCCA elected to end

[00:20:00] Speaker 01:
their employment, and there are no allegations, nor do I believe there could be, that the state had anything to do with that particular decision.

[00:20:09] Speaker 01:
This court's precedence, that is in state action.

[00:20:12] Speaker 01:
That's the action by a private entity.

[00:20:16] Speaker 01:
Now, Pellin's argument, and we heard a little bit about that previously,

[00:20:21] Speaker 01:
And that is also the argument raised in the briefs.

[00:20:23] Speaker 01:
It doesn't really engage the state action point in the right way.

[00:20:27] Speaker 01:
Their argument, as you heard, is that STCA is necessarily a state actor because it's signed up to be a vaccine administrator under the CDC program.

[00:20:37] Speaker 01:
And therefore, it was necessarily a state actor for all purposes.

[00:20:43] Speaker 01:
That's not right.

[00:20:43] Speaker 01:
As we know, as the 10th Circuit precedents hold and make clear, you can be a state actor for some purposes, but not others.

[00:20:52] Speaker 01:
And what appellants are focusing on is SDCA's role as a vaccine provider, as a provider to its patients, and not as its role as an employer to its employees.

[00:21:03] Speaker 01:
And that is who appellants are or were.

[00:21:07] Speaker 01:
They were SDCA's employees.

[00:21:09] Speaker 01:
So that's the problem.

[00:21:10] Speaker 01:
It's conflating the context here.

[00:21:12] Speaker 01:
And the allegations make very clear.

[00:21:15] Speaker 01:
Appellants were S.D.C.A.'

[00:21:17] Speaker 01:
's employees.

[00:21:18] Speaker 01:
They never alleged that they were vaccinated by S.D.C.A.

[00:21:21] Speaker 01:
or vaccinated at all.

[00:21:23] Speaker 01:
They never alleged that the vaccine policy required them to get vaccinated by S.D.C.A.

[00:21:29] Speaker 01:
Just said get vaccinated.

[00:21:30] Speaker 01:
Instead, they were employees subject to SDCA's at-will employment policies that were not implicated by all of these statutes and authorities that were referring to in the Section 1983 claims.

[00:21:44] Speaker 01:
So, whatever SDCA could have been deemed when administering vaccines to patients, that's just not the relevant analysis here.

[00:21:53] Speaker 01:
The question is whether SDCA was a state actor when it implemented this policy as to its employees and then enforced it as to the impellence specifically.

[00:22:02] Speaker 01:
And under 10th Circuit law and in line with about half a dozen other cases around the country that have dealt with this same question under state rules and then private vaccine policies, the answer is that was not state action by SDCA.

[00:22:18] Speaker 01:
That's what the district court found in dismissing the claims as the SDCA on this particular element and I'm happy to address any specific questions the court has otherwise.

[00:22:31] Speaker 01:
We would just simply ask that the court affirm Council thank you That's a rebuttal remaining

[00:22:49] Speaker 04:
The PREP Act's language says the secretary shall ensure that potential participants are educated with respect to contraindications, the voluntary nature of the program, and the availability of potential benefits and compensation under this part.

[00:23:09] Speaker 04:
That is focused on the potential participants.

[00:23:12] Speaker 04:
It talks about there that the secretary shall ensure the voluntary nature of the program.

[00:23:18] Speaker 04:
What authority has the CDPHE come forward with and shown this court that it has the authority to turn a prep act program into an involuntary program?

[00:23:32] Speaker 04:
It does not have that authority.

[00:23:37] Speaker 02:
On the clearly established prong of qualified immunity,

[00:23:40] Speaker 02:
Do you have any cases that support you as far as that being a cognizable right, federal right, under 1983?

[00:23:49] Speaker 04:
The Cruzan case is a case that establishes that individuals have the right to refuse unwanted medical treatment.

[00:24:01] Speaker 02:
Is it a 1983 case?

[00:24:02] Speaker 04:
It's not a 1983 case.

[00:24:04] Speaker 02:
So the answer is you don't have any cases.

[00:24:07] Speaker 04:
But what we're talking about clearly established is what clearly established right are we talking about?

[00:24:12] Speaker 04:
The clearly established right is the right to determine what does and does not go into one's body.

[00:24:17] Speaker 04:
That's been clearly established for decades.

[00:24:19] Speaker 02:
Generally clearly established means that there is a case from the Supreme Court or one from our circuit that announces as a holding the point that you're trying to drive home.

[00:24:32] Speaker 04:
was an issue with the Sweeney opinion that Timken adopted.

[00:24:36] Speaker 04:
And that the judge said, the district court kept saying, well, there's no legal authority for these arguments.

[00:24:43] Speaker 04:
And all the arguments are with regard to these drugs, this COVID-19 pandemic, the EUA authorization, the Prep Act declaration, that's never been, it's never happened before.

[00:24:55] Speaker 04:
These are cases of first impression.

[00:24:58] Speaker 04:
So when the council opposite cites to all these,

[00:25:02] Speaker 04:
District court opinions that went against us.

[00:25:05] Speaker 04:
Those don't control this court.

[00:25:08] Speaker 04:
They don't bind this court.

[00:25:10] Speaker 02:
They don't need a case saying that there's not a right.

[00:25:13] Speaker 02:
You need a case saying that there is a right.

[00:25:15] Speaker 02:
Do you agree with that or no?

[00:25:17] Speaker 04:
I agree, but there has to be a first case.

[00:25:20] Speaker 04:
Does that mean that the first case can never win?

[00:25:23] Speaker 04:
It's kind of like the dog bite cases.

[00:25:25] Speaker 04:
The first person that gets bit by the dog can't recover, but the second can.

[00:25:29] Speaker 04:
Are we the trailblazers?

[00:25:30] Speaker 03:
That's exactly the way qualified immunity works, actually.

[00:25:33] Speaker 04:
Well, and so going to qualified immunity, since the CDPHE cannot cite to any authority to turn the PREP Act into an involuntary program, those are ultra-various actions by the director.

[00:25:46] Speaker 04:
So you don't get qualified immunity for engaging in an activity that's outside of your authority.

[00:25:52] Speaker 04:
So there's the state.

[00:26:01] Speaker 04:
was the signatory.

[00:26:02] Speaker 04:
The state agreed to abide by and be a collaborator in the CDC provider agreement.

[00:26:08] Speaker 04:
To then say, oh well, we can carve out any state department because each state department didn't sign the contract.

[00:26:16] Speaker 04:
We don't agree with that argument.

[00:26:18] Speaker 04:
Carvalho, the decision, determined that that case was declaratory and injunctive relief.

[00:26:25] Speaker 04:
It was not a claim for damages like we're bringing.

[00:26:28] Speaker 04:
We don't see that case as controlling on our plaintiffs.

[00:26:34] Speaker 04:
So with regard to state action, SDCA is wearing two hats.

[00:26:43] Speaker 04:
Yes, they're a private employer normally, but when they decided to become a vaccination provider under the CDC provider agreement, they decided that they're going to wear another hat.

[00:26:52] Speaker 04:
So now what they're saying is that,

[00:26:55] Speaker 04:
If a patient comes in and says, you know, I want to find out about these COVID shots, and they give them the fact sheet, and that patient says, you know what?

[00:27:04] Speaker 04:
I've changed my mind.

[00:27:05] Speaker 04:
I don't want it.

[00:27:06] Speaker 04:
They're going to say, fine, you can leave.

[00:27:09] Speaker 04:
No penalty.

[00:27:10] Speaker 04:
But if you're an employee, you don't have that right.

[00:27:17] Speaker 04:
We're going to punish you.

[00:27:20] Speaker 04:
They don't have the right to do that.

[00:27:21] Speaker 04:
They can't just take off the hat from the CDC provider agreement

[00:27:24] Speaker 04:
put on the employer hat and say, this is what binds me now.

[00:27:28] Speaker 03:
Would that also be true for entities like Walmart or Walgreens that also provided vaccinations?

[00:27:34] Speaker 04:
If Walgreens was, if you could go into a Walgreens and get a COVID shot, they signed the provider agreement.

[00:27:42] Speaker 03:
They'd be a state actor under your theory?

[00:27:44] Speaker 04:
Only with regard to the shots and communications with the shots, interactions with anyone about them.

[00:27:51] Speaker 04:
Yes, they are wearing their CDC provider agreement hat at that point.

[00:27:55] Speaker 04:
And they can't just rely upon, you know what, I'm just going to be an at-will employer for purposes of you, but not for you.

[00:28:01] Speaker 04:
That's an equal protection issue.

[00:28:04] Speaker 03:
And as a state actor, are they acting on behalf of the state of Colorado or acting on behalf of the United States of America?

[00:28:13] Speaker 04:
Both because it's a collaboration and the provider agreement says that all of these drugs must be distributed through each state's immunization cooperative agreement, which is statutorily authorized by the state.

[00:28:25] Speaker 04:
So yes, they are acting under color of state law when they are agreeing to collaborate with the state and the federal government to distribute these federal drugs.

[00:28:38] Speaker 04:
See if my time's almost up, so unless there's anything else.

[00:28:42] Speaker 03:
We appreciate your arguments.

[00:28:43] Speaker 03:
Council is excused and the cases are submitted.

[00:28:45] Speaker 03:
Thank you.