Slidewaters LLC v. Washington State Dep't ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SLIDEWATERS LLC, No. 20-35634
Plaintiff-Appellant,
D.C. No.
v. 2:20-cv-00210-
TOR
WASHINGTON STATE DEPARTMENT
OF LABOR AND INDUSTRIES; JAY
ROBERT INSLEE, Governor, in his OPINION
official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted June 7, 2021
Seattle, Washington
Filed July 8, 2021
Before: Ronald M. Gould, Richard R. Clifton, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Clifton
2 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
SUMMARY*
Civil Rights
The panel affirmed the district court’s denial of injunctive
relief and dismissal of state and federal claims in an action
brought by the owner of a waterpark in Chelan County,
Washington who challenged the State’s restrictions, imposed
in response to the COVID-19 pandemic, prohibiting the
waterpark from operating during 2020 and imposing capacity
limits in 2021.
The panel held that defendants had the authority under
Washington law to impose the restrictions and that doing so
did not violate plaintiff’s asserted rights under the U.S.
Constitution. Addressing the state law claims, the panel held
that the governor had the lawful authority under Revised
Code of Washington § 43.06.010(12) to issue Proclamation
20-05, as the pandemic was both a public disorder and a
disaster affecting life and health in Washington. The panel
further held that the State Department of Labor and
Industries, in promulgating an emergency rule as part of the
state’s efforts to curb the pandemic, Washington
Administrative Code § 296-800-14035, acted within its scope
of authority. The panel held that the executive branch’s
actions did not violate the principle of separation of powers
with regard to the legislative branch; and the actions of
defendants also did not violate the principle of separation of
powers with regard to the judicial branch. The panel rejected
plaintiff’s argument that state-level entities were not the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 3
proper entities to address the pandemic and that the state of
emergency and resulting state actions unlawfully impinged on
the authority of county health officials.
The panel held that the substantive due process rights of
the waterpark, its owners, and its employees were not
violated by defendants’ actions. The panel held that the right
to pursue a common calling or use property as one wishes are
not considered fundamental rights and defendants provided
a rational basis for the proclamations and related rules.
The panel held that plaintiff’s application for injunctive
relief was properly denied, and the district court did not err in
consolidating plaintiff’s motion for a preliminary injunction
with a hearing on the merits or in reaching plaintiff’s state
law claims. The panel noted that the district court gave clear
and unambiguous notice to the parties of its intent to
consolidate under Federal Rule of Civil Procedure 65(a)(2)
and provided a schedule for supplemental submissions.
Plaintiff was not substantially prejudiced by the
consolidation, and the district court did not abuse its
discretion in how it organized its consideration of the issues
before it.
Finally, the panel held that the state law claims did not
require abstention under the Pullman doctrine and
certification of questions to the Washington Supreme Court
was not required in this instance, as the answers to the state
law questions were not uncertain.
4 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
COUNSEL
Sydney Phillips (argued) and Robert A. Bouvatte Jr.,
Freedom Foundation, Olympia, Washington, for Plaintiff-
Appellant.
Brendan Selby (argued) and Zackary Pekelis Jones, Assistant
Attorneys General, Complex Litigation Division; Jeffrey T.
Even, Deputy Solicitor General; Robert W. Ferguson,
Attorney General; Office of the Attorney General, Seattle,
Washington; for Defendants-Appellees.
OPINION
CLIFTON, Circuit Judge:
Plaintiff Slidewaters LLC operates a waterpark in Chelan
County, Washington. In response to the COVID-19
pandemic, the State of Washington imposed restrictions
which prohibited the waterpark from operating during 2020.
Slidewaters has been permitted to open in 2021, but the
restrictions continue to impact Slidewaters by limiting the
number of patrons in the waterpark. Slidewaters contends
that the restrictions are unlawful under Washington state law
and also violate Slidewaters’ federal constitutional rights. It
sought a preliminary injunction to restrain Defendants,
Governor Jay Inslee and the State Department of Labor and
Industries (“L&I”), from enforcing the restrictions. The
district court denied injunctive relief and dismissed
Slidewaters’ action with prejudice. Slidewaters appeals that
decision on the merits and adds several procedural objections
to the district court’s treatment of the case.
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 5
We conclude that Defendants have the authority under
Washington law to impose the restrictions and that doing so
does not violate Slidewaters’ asserted rights under the U.S.
Constitution. Slidewaters’ application for injunctive relief
was properly denied and its claims were properly dismissed.
We also conclude that the district court did not err in
consolidating Slidewaters’ motion for preliminary injunction
with a hearing on the merits or in reaching Slidewaters’ state
law claims. We affirm the judgment of the district court.
I. Background
COVID-19 is a novel, potentially deadly, severe acute
respiratory illness caused by a virus that is most commonly
transmitted person to person. See S. Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts,
C.J., concurring in denial of application for injunctive relief).
Transmission can occur even when the infected person does
not have symptoms and does not know of the infection. Id.Governments at all levels instituted restrictions to curb the
transmission of the virus. See, e.g., id. Even with the
restrictions, it is estimated that over 114.6 million people in
the United States became infected. CDC, Estimated Disease
Burden of COVID-19 (May 19, 2021), https://www.cdc.gov
/coronavirus/2019-ncov/cases-updates/burden.html (last
visited June 29, 2021). Over 600,00 people in the
United States have died from COVID-19. CDC, COVID
Data Tracker, https://covid.cdc.gov/covid-data-tracker/
#datatracker-home (last visited June 29, 2021). In
Washington, there have been over 451,200 cases, 25,400
hospitalizations, and 5,900 deaths. Wash. State Dep’t of
Health, COVID-19 Data Dashboard, https://www.doh.wa.g
ov/Emergencies/COVID19/DataDashboard (last visited June
29, 2021).
6 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
In response to the initial COVID-19 outbreak in
Washington, Governor Inslee declared a State of Emergency
in Proclamation 20-05, on February 29, 2020. The
proclamation instructed state departments to “utilize state
resources and to do everything reasonably possible to assist
affected political subdivisions in an effort to respond to and
recover from the outbreak.” Additional proclamations have
been issued since then as the pandemic has continued, but
Proclamation 20-05 remains in effect.
L&I promulgated an emergency rule, Washington
Administrative Code § 296-800-14035 (the “L&I COVID-19
Rule”), as part of the state’s efforts to curb the COVID-19
pandemic. The rule creates an enforcement mechanism for
the proclamations’ restrictions on businesses by prohibiting
employers from allowing employees to work if the business
activity is prohibited. Wash. Admin. Code § 296-800-14035(2020). If an employee is found working when the business
activity is prohibited under the proclamations, the employer
can be issued a citation that could result in a fine.
Slidewaters is normally open in the summer, from the
Saturday prior to Memorial Day to Labor Day. However, the
applicable state plan, in the form of the “Safe Start, Stay
Healthy Plan” followed by the “Healthy Washington –
Roadmap to Recovery,” prohibited Slidewaters from
operating until its part of the state reached certain public
health goals, including being below a given level of new
cases and hospitalizations. That meant that Slidewaters was
unable to operate legally in the summer of 2020 as the region
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 7
including Chelan County never reached the public health
goals which would have allowed Slidewaters to open.1
Now, in the summer of 2021, conditions have improved
such that, under the restrictions that currently apply,
Slidewaters can operate, albeit subject to limits which include
restricting its capacity to 50 percent. It reopened as
scheduled on May 29, 2021, and Slidewaters reports that it is
operating in accordance with the current Washington State
requirements.
II. Procedural History
Slidewaters filed a complaint in the Superior Court for
Chelan County in early June 2020. It was removed by
Defendants to the U.S. District Court for the Eastern District
of Washington a few days later, and the litigation proceeded
thereafter in district court.
In its complaint, Slidewaters sought an injunction against
Proclamation 20-05 and the emergency rule issued by L&I.
Slidewaters filed a motion for a temporary restraining order,
which was denied by the district court.
Shortly after the denial of the TRO, Defendants filed in
the district court an answer to the complaint and a
counterclaim under Washington law. The counterclaim
sought a declaratory judgment that Slidewaters’ conduct
1
Despite the prohibition, Slidewaters resumed operations on June 21,
2020, and opened in violation of state law for thirty days. Slidewaters was
cited by the Department of Health for the violation, and was fined by the
L&I. Slidewaters reports that it is contesting the fine and contends that
success in this appeal could result in the fine being set aside.
8 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
violated Proclamation 20-05 and an injunction against
Slidewaters operating its facilities in violation of the
proclamation.
On the same day that Defendants’ responsive pleading
was filed, Slidewaters filed a motion in the district court for
a preliminary injunction and requested expedited treatment of
that motion by the district court. The request for expedited
treatment was granted, over opposition by Defendants. In
granting that request, the district court announced that it was
inclined to exercise its discretion to treat the request for a
preliminary injunction as if it were a motion for a permanent
injunction, and it set a schedule for the parties to supplement
previous filings if they desired.
After receiving supplemental filings, the district court
denied the requests for injunctive relief, both preliminary and
permanent, and dismissed Slidewaters’ complaint with
prejudice. In the order in which it dismissed Slidewaters’
complaint, the district court noted that the dismissal of the
complaint, including its federal claim, meant that there was
no longer a basis for the court to exercise supplemental
jurisdiction over the remaining state law claim, namely the
counterclaim asserted by Defendants. The district court
remanded Defendants’ state law counterclaim. This claim
was later dismissed by Defendants. See Motion to Dismiss
by Defendants, Slidewaters v. L&I, No. 20-2-00389-04
(Wash. Super. Ct., Chelan Cnty. July 17, 2020).
III. Slidewaters’ State Law Claims
Slidewaters appeals the district court’s denial of its
motion for preliminary injunction and dismissal of its state
law claims. Slidewaters raises four challenges to the legality
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 9
of the emergency proclamations and the rule promulgated by
L&I. First, Slidewaters argues that Proclamation 20-05 is
unlawful because the COVID-19 pandemic does not meet the
criteria in Revised Code of Washington § 43.06.010(12) to
declare a state of emergency. Second, Slidewaters alleges
that the L&I COVID-19 Rule, Washington Administrative
Code § 296-800-14035, is unlawful because the rule’s subject
matter falls outside L&I’s scope of rulemaking authority.
Third, Slidewaters argues that Defendants’ actions violate the
principle of separation of powers by usurping the power of
the legislature through the emergency declaration and
removing the judicial branch by having administrative
agencies adjudicate violations of the L&I COVID-19 Rule.
Finally, Slidewaters alleges that the state is improperly
seizing power from local health departments in its efforts to
curb the pandemic and that these local departments are the
only entities that can regulate health under Washington law.
We review denial of an injunction for abuse of discretion,
the underlying determination of the statutes’ constitutionality
de novo, and any underlying findings of fact for clear error.
Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1208 n.7 (9th
Cir. 2010). The underlying facts do not appear to be in
dispute here.
A. Proclamation 20-05
Slidewaters argues that the governor unlawfully declared
a state of emergency under Revised Code of Washington
§ 43.06.010(12). The statute states: “The governor may, after
finding that a public disorder, disaster, energy emergency, or
riot exists within this state or any part thereof which affects
life, health, property, or the public peace, proclaim a state of
10 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
emergency in the area affected . . . .” Wash. Rev. Code
§ 43.06.010(12) (2014).
Slidewaters argues that the COVID-19 pandemic is not “a
public disorder, disaster, energy emergency, or riot,” so the
governor exceeded his lawful authority when he declared a
state of emergency in Proclamation 20-05. Defendants
counter that the pandemic is both a “disaster” and a “public
disorder,” so the declaration of a state of emergency was
lawful.
As this is a matter of state law interpretation, we start by
looking to the state’s highest court to see if it has opined on
the issue. Giles v. Gen. Motors Acceptance Corp., 494 F.3d
865, 872 (9th Cir. 2007). The Washington Supreme Court
has not directly addressed the legality of Proclamation 20-05
and the subsequent proclamations.
We then turn to the words of the statute itself, applying
Washington principles of statutory interpretation. See
Powell’s Books, Inc., 622 F.3d at 1209. The Washington
Supreme Court instructs that in reading a statute, one must
look at the plain meaning of a statute’s words as defined in a
dictionary. State v. Smith, 405 P.3d 997, 1001 (Wash. 2017).
The district court focused on the term “public disorder” in
concluding that the declaration of a state of emergency was
within the governor’s authority. We agree that the COVID-
19 pandemic can be understood as a “public disorder”
affecting “life [and] health” in Washington. Wash. Rev.
Code § 43.06.0101(12). It has caused an “[a]bsence or
undoing of order or regular arrangement” as well as
“confusion.” Disorder, Oxford English Dictionary,
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 11
https://www.oed.com/view/Entry/54859 (last visited June 29,
2021).
In addition, the COVID-19 pandemic is appropriately
described as a “disaster,” the term used in Proclamation 20-
05, and the subsequent proclamations. The term “disaster”
means an “event or occurrence of a ruinous or very
distressing nature; a calamity.” Disaster, Oxford English
Dictionary, https://www.oed.com/view/Entry/53561 (last
visited June 29, 2021). A pandemic which continues to cause
widespread disease and death fits within this definition. See
Cougar Bus. Owners Ass’n v. State, 647 P.2d 481, 486
(Wash. 1982) (en banc), overruled in part by Yim v. City of
Seattle, 451 P.3d 694 (Wash. 2019) (holding that the
threatened eruption of Mt. St. Helens constituted a “disaster”
because it required the governor to take action “to save lives
or property”).
We thus conclude that the governor had the lawful
authority under Revised Code of Washington § 43.06.010(12)
to issue Proclamation 20-05, as the pandemic is both a
“public disorder” and a “disaster” affecting “life [and] health”
in Washington.
Washington Supreme Court cases regarding Revised
Code of Washington § 43.06.010(12) confirm our
understanding of the statute. See Giles, 494 F.3d at 872(“Where the state’s highest court has not decided an issue, the
task of the federal courts is to predict how the state high court
would resolve it.” (quoting Dimidowich v. Bell & Howell,
803 F.2d 1473, 1482 (9th Cir. 1986))). The Washington
Supreme Court has held that “[t]he proclamation of an
emergency and the Governor’s issuance of executive orders”
to address that emergency “are by statute committed to the
12 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
sole discretion of the Governor.” Cougar Bus. Owners Ass’n,
647 P.2d at 486.
Although not addressing the legality of the proclamation
directly, the Washington Supreme Court has signaled its
approval of Governor Inslee’s use of his emergency powers
in the context of the COVID-19 pandemic. In Colvin v.
Inslee, 467 P.3d 953 (Wash. 2020), that court discussed when
a state of emergency may be declared under Revised Code of
Washington § 43.06.010(12). Id. at 962–63. It noted that the
court had “no authority to oversee the governor’s many
discretionary actions to address the COVID-19 outbreak”
when he is acting pursuant to his emergency powers. Id.
at 964. We are satisfied that the Washington court would
reach the same conclusion that we have here, that the
governor’s issuance of Proclamation 20-05 was within the
authority granted by the statute.
B. The L&I COVID-19 Rule
Slidewaters argues that the L&I COVID-19 Rule,
Washington Administrative Code § 296-800-14035, is
beyond the scope of L&I’s rulemaking authority.
The enabling statute for L&I states that the Department
“shall make, adopt, modify, and repeal rules and regulations
governing safety and health standards for conditions of
employment as authorized by [the Washington Industrial
Safety and Health Act] . . . .” Wash. Rev. Code § 49.17.040(2021); see also Wash. Rev. Code § 49.17.010 (1973).
L&I, in promulgating the L&I COVID-19 Rule, acted
within its scope of authority. The rule is focused on ensuring
the “safety and health standards for conditions of
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 13
employment” by ensuring that employers abide by the
COVID-19 capacity or closure restrictions directed by
Proclamation 20-05 and its subsequent amending
proclamations. The rule seeks to ensure that employees are
not placed in unsafe conditions by their employers. That is
within the scope of the Department’s rulemaking authority.
C. Separation of Powers
Slidewaters presents an argument based on the separation
of powers among the three branches of Washington state
government under the state constitution. It argues that
Defendants, executive branch actors, improperly assumed the
roles of the legislative and judicial branches. Slidewaters
accuses the governor of impermissibly writing laws through
his proclamations and using administrative adjudication to
avoid review by the courts.
By statute enacted by the Legislature, the governor’s
powers are enlarged during a state of emergency. See Wash.
Rev. Code § 43.06.220 (2019). The statute “delegat[es]
legislative police powers to the Governor in times of an
emergency.” Cougar Bus. Owners Ass’n, 647 P.2d at 487;
see also id. at 485–86. In the face of COVID-19, the
governor has used these powers to limit gathering in public or
private, Wash. Rev. Code § 43.06.220(1)(b), and to ban
activities he concluded “should be prohibited to help preserve
and maintain life [and] health . . . ,” Wash. Rev. Code
§ 43.06.220(1)(h). These powers are expressly delegated to
the governor under the Revised Code of Washington
§ 43.06.220.
The executive branch’s actions do not violate the
principle of separation of powers with regard to the
14 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
legislative branch. The actions are within the authority
delegated to Defendants by the Washington State Legislature.
See Barry & Barry, Inc. v. State Dep’t of Motor Vehicles,
500 P.2d 540, 542–43 (Wash. 1972). The delegation of
power by the legislature to the executive to act in a time of
emergency under the standards set out by the legislature and
using the procedures dictated by the legislature does not
present separation of powers concerns. Id.The actions of Defendants also do not violate the
principle of separation of powers with regard to the judicial
branch. Administrative adjudication within L&I is not unlike
adjudication of certain matters within the executive branch of
the federal government, for example by immigration judges
acting under the authority of the Attorney General, or
administrative law judges for the National Labor Relations
Board. There is probably some degree of administrative
adjudication within the executive branches of every state.
That is not unusual and does not itself constitute a violation
of the separation of powers doctrine. Nor is it a recent
outgrowth in response to COVID-19.
Administrative adjudication within L&I is not new. See
1973 Wash. Legis. Serv. Chap. 80 § 14 (creating Board of
Industrial Insurance Appeals). The system established by the
Washington Legislature allows for appeal to the superior
courts after administrative exhaustion. Wash. Rev. Code
§ 49.17.150(1) (1982). The Washington Legislature created
this system intentionally and explicitly. See Cobra Roofing
Servs., Inc. v. State Dep’t of Labor & Indus., 135 P.3d 913,
917 n.6 (Wash. 2006) (en banc) (stating the statute provides
for administrative and superior court review). Having an
administrative review process does not replace, but rather
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 15
augments, judicial review and does not present a separation
of powers violation.
D. County Health Officials
Slidewaters also argues that state-level entities are not the
proper entities to address the pandemic and that the state of
emergency and resulting state actions unlawfully impinge on
the authority of county health officials. It points to Revised
Code of Washington § 70.05.070 for the proposition that all
public health enforcement must be done at the county level.
The statute does not put ultimate authority in the hands of
county officials. When there is a direct conflict between state
and county health regulations, the state prevails. See HJS
Dev., Inc. v. Pierce Cnty ex. rel, Dep’t of Plan. & Land
Servs., 61 P.3d 1141, 1154 (Wash. 2003) (en banc); see also
Wash. Const. art., XI § 11 (permitting localities to make and
enforce regulations “not in conflict with general laws”).
Indeed, the county health district stated explicitly last year in
connection with the limitations imposed on Slidewaters that
it did “not have the authority to override the Governor’s
orders, which [did] not [at that time] allow the operation of”
Slidewaters’ waterpark.
Revised Code of Washington § 43.70.130 is also cited by
Slidewaters to support its argument, but it actually confirms
the authority of state officials. The statute outlines the
powers and duties of the state secretary of health, including
to “[e]xercise general supervision over the work of all local
health departments.” Wash. Rev. Code § 43.70.130(6).
Local health officials play important roles, but are not
autonomous or independent actors. They are explicitly
subject to supervision by the state secretary of health and
16 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
state board of health. Wash. Rev. Code §§ 70.05.060(1)
(1991), 70.05.070(1) (2020); see also Wash. Rev. Code
§ 43.70.130(4), (6) & (7). Defendants are not improperly
impinging on local health officials’ domain as the local health
officials answer to the secretary of health and the state board
of health, state-wide entities.
Furthermore, in addition to state and county health
officials, the state has placed authority into the hands of other
departments. See Parkland Light & Water Co. v. Tacoma-
Pierce Cnty. Bd. of Health, 90 P.3d 37, 39 (Wash. 2004) (en
banc) (Local health officials are not authorized “to act in
areas where the legislature has made a more specific
delegation of authority to another agency.”). L&I is charged
with making and enforcing workplace safety and health
standards. See Wash. Rev. Code §§ 49.17.040, 49.17.010.
The delegation of some public health enforcement
responsibility to local governments does not strip other state
agencies of the authority placed in them.
IV. Federal Constitutional Claim
Slidewaters also appeals the district court’s dismissal of
its federal claim. Slidewaters argues that the state’s actions
impinge on Slidewaters’ right to pursue a common calling
and right to use its property as well as its employees’ right to
work and its owners’ right to pursue their business and use
their property as they see fit. Slidewaters describes those as
“substantive due process rights,” with little elaboration as to
their constitutional foundation. Slidewaters cites Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020),
a Supreme Court decision regarding COVID-19 restrictions
on religious worship, to support its argument that the
Washington restrictions violate its rights. Slidewaters argues
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 17
Defendants acted arbitrarily by creating “one-size-fits-all”
restrictions and not reviewing Slidewaters’ own individual
reopening plan. The district court rejected Slidewaters’
arguments and found no constitutional violation. We review
the district court’s conclusions of law de novo. Powell’s
Books, Inc., 622 F.3d at 1208 n.7.
The right to pursue a common calling is not considered a
fundamental right. Marilley v. Bonham, 844 F.3d 841, 854
(9th Cir. 2016) (en banc) (collecting cases). The right to use
property as one wishes is also not a fundamental right.
Bowers v. Whitman, 671 F.3d 905, 915–17 (9th Cir. 2012).
Both of those described rights are economic in nature. This
court has held that “[t]he proper test for judging the
constitutionality of statutes regulating economic activity . . .
is whether the legislation bears a rational relationship to a
legitimate state interest.” Jackson Water Works, Inc. v. Pub.
Util. Comm’n of Cal., 793 F.2d 1090, 1093–94 (9th Cir.
1986). Under this deferential standard, Slidewaters must
show that the state’s actions are “clearly arbitrary and
unreasonable, having no substantial relation to the public
health, safety, morals or general welfare.” Samson v. City of
Bainbridge Island, 683 F.3d 1051, 1058 (9th Cir. 2012)
(quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227,
1234 (9th Cir.1994)). Slidewaters does not dispute that its
claim is subject to rational basis review.
There is a legitimate state interest in preventing the spread
of COVID-19, a deadly contagious disease. This has been
recognized by the U.S. Supreme Court. See Roman Cath.
Diocese of Brooklyn, 141 S. Ct. at 67 (“Stemming the spread
of COVID-19 is unquestionably a compelling interest . . . .”).
The question is whether Defendants’ actions are rationally
related to this interest.
18 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
States are given “great leeway in adopting summary
procedures to protect public health and safety.” Mackey v.
Montrym, 443 U.S. 1, 17 (1979). That is true “even in the
absence of an emergency in the usual sense.” Sinaloa Lake
Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1406
(9th Cir. 1989) (quoting Mackey), overruled on other grounds
by Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en
banc). In an emergency, the leeway is even greater. See id.(“[G]overnment officials need to act promptly and decisively
when they perceive an emergency.” (citation omitted)).
Defendants created a state-wide plan. Among other
things, the plan attempts to differentiate activities based on
how essential they are. For example, grocery stores are
deemed more essential than recreational businesses and are
subject to less severe capacity restrictions. See Office of the
Governor, Healthy Washington Roadmap to Recovery 3
(May 18, 2021), https://www.governor.wa.gov/sites/default
/files/HealthyWashington.pdf (last visited June 29, 2021).
The plan also groups different types of activities and treats
them by category rather than requiring the state to conduct an
assessment of each and every individual business or property.
Particularly in dealing with an emergency that calls for
prompt action, it is not irrational for Defendants to take this
approach. The state is not required to draw a perfect line in
determining which individual businesses can safely open and
which cannot. Cf. Vance v. Bradley, 440 U.S. 93, 108–09
(1979) (under rational-basis review, classifications that are
under- or over-inclusive do not create constitutional
violations).
Slidewaters’ reliance on Roman Catholic Diocese is
misdirected. The primary point emphasized in that decision
is that review of action impinging on religious practice is
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 19
more stringent than that applied when no fundamental right
has been restricted. When a law burdens religious practice
and is not neutral or of general application, the government’s
actions “must be ‘narrowly tailored’ to serve a ‘compelling’
state interest.” Roman Cath. Diocese of Brooklyn, 141 S. Ct.
at 67 (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520, 546 (1993)). By comparison, when a law does
not burden a fundamental right, the government’s action must
only be “rationally related to legitimate government
interests.” See Washington v. Glucksberg, 521 U.S. 702, 728
(1997).
In large part, Slidewaters’ objection to its treatment under
the proclamations and rules amounts simply to a
disagreement with the judgment of Defendants. Slidewaters
is confident, as it states in its opening brief, that it “could and
can operate safely.” But government regulation does not
constitute a violation of constitutional substantive due process
rights simply because the businesses or persons to whom the
regulation is applied do not agree with the regulation or its
application. Defendants provide a rational basis for the
proclamations and related rules. The substantive due process
rights of Slidewaters, its owners, and its employees are not
violated by Defendants’ actions.
V. Consolidation of Preliminary and Permanent
Injunction Motions
Federal Rule of Civil Procedure 65(a)(2) provides that
“[b]efore or after beginning the hearing on a motion for a
preliminary injunction, the court may advance the trial on the
merits and consolidate it with the hearing.” The district court
here announced its inclination to treat Slidewaters’ motion for
a preliminary injunction “as if it were a motion for permanent
20 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
injunction,” thereby consolidating the motion into a merits
determination. This order was issued a week before the date
set for submission of the motion for decision.
Slidewaters did not object to the district court’s
consolidation under Rule 65(a)(2). Slidewaters also did not
raise an objection to the district court after the court issued its
order denying the injunction and dismissing the complaint.
Slidewaters challenges the district court’s consolidation of its
motion for preliminary injunction with the consideration on
the merits for the first time in this appeal. A decision to
consolidate an action under Federal Rule of Civil Procedure
65(a)(2) is reviewed for abuse of discretion. Michenfelder v.
Sumner, 860 F.2d 328, 336 (9th Cir. 1988).
A district court must give “clear and unambiguous notice
[of the court’s intent to consolidate the trial and the hearing]
either before the hearing commences or at a time which will
still afford the parties a full opportunity to present their
respective cases.” Id. at 337 (alteration in original) (quoting
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Our
review of such a notice appropriately considers the context.
A consolidation by the district court “will not be overturned
on appeal ‘absent a showing of substantial prejudice in the
sense that a party was not allowed to present material
evidence.’” Id. (quoting Abraham Zion Corp. v. Lebow,
761 F.2d 93, 101 (2d Cir. 1985)).
The district court gave clear and unambiguous notice to
the parties of its intent to consolidate under Rule 65(a)(2) and
provided a schedule for supplemental submissions.
Slidewaters did not object.
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 21
Slidewaters now complains that it did not have a full
opportunity to present its case. It has failed, however, to
identify what more it would have done that might reasonably
have led to a different outcome. It argues that it could have
presented what it describes as “a richer record” if it had “the
benefit of discovery,” but when asked what discovery would
have been sought and how it could have made a difference, it
did not provide any specific examples.
Slidewaters has not identified any discovery that might
have mattered, and we do not perceive any ourselves. The
issues raised by the complaint were legal. The central
challenge was to Defendants’ authority under Washington
law. Resolving that challenge did not require additional
factual development. Slidewaters has not demonstrated that
it was prejudiced by the consolidation or by the notice given
by the district court. See Edmo v. Corizon, Inc., 935 F.3d
757, 801 (9th Cir. 2019) (approving of Rule 65(a)(2) notice
when given at the start of a hearing).
The district court provided adequate notice of its intent to
consolidate the motion for preliminary injunction with its
consideration of the merits as required under Rule 65(a)(2).
It also provided sufficient time, especially given the
expedited nature of the case, for Slidewaters to protest the
consolidation or submit additional arguments for the court to
consider. Slidewaters was not substantially prejudiced by the
consolidation, and the district court did not abuse its
discretion in how it organized its consideration of the issues
before it.
22 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
VI. Decision to Rule on Slidewaters’ State Law Claims
Slidewaters originally filed this case in state superior
court. Defendants removed the case to federal court under
28 U.S.C. § 1441 as the complaint included a federal claim.
The district court took supplemental jurisdiction of the state
law claims under 28 U.S.C. § 1367.
Slidewaters did not object to the district court’s
consideration of the case or of the portions of its claims based
on state law. Instead, on the same day as the removal, it filed
in the district court a motion for temporary restraining order
and a motion to expedite. That motion for temporary
restraining order included arguments on its state law claims.
Slidewaters raised and argued those state law claims in the
motion for preliminary injunction it filed in the district court.
Again, Slidewaters requested expedited consideration of its
motion. The district court then decided Slidewaters’ state law
claims. Slidewaters made no objection to the process
employed by the district court even after that court issued its
order.
Nonetheless, Slidewaters argues on appeal that the district
court should not have decided its state law claims but instead
should have declined to do so and waited for a Washington
court to rule on the issues. Specifically, Slidewaters argues
that the district court should have remanded its state law
claims or certified them to the Washington Supreme Court.
Slidewaters makes this argument on appeal even though
it repeatedly raised and argued its state law claims, requested
the district court to expedite its decision on those claims, and
never objected to the district court deciding its state law
claims. Slidewaters does not explain how the district court
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 23
could have remanded this case to state court following its
removal by Defendants. It has not argued to either the district
court or to us on appeal that the removal was improper. Nor
has it identified a pending state court proceeding raising the
relevant issues in favor of which the district court should have
abstained.
Slidewaters argues that the district court should have
abstained from ruling on its state law claims under the
Pullman doctrine. See Railroad Comm’n of Tex. v. Pullman
Co., 312 U.S. 496 (1941). We address this previously
unraised argument because forfeiture in the district court does
not preclude us from reviewing whether Pullman abstention
was appropriate. See Columbia Basin Apartment Ass’n v.
City of Pasco, 268 F.3d 791, 802 (9th Cir. 2001).
Under Pullman abstention the “federal courts have the
power to refrain from hearing cases . . . in which the
resolution of a federal constitutional question might be
obviated if the state courts were given the opportunity to
interpret ambiguous state law.” United States v. State Water
Res. Control Bd., 988 F.3d 1194, 1209 (9th Cir. 2021)
(alteration in original) (quoting Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716–17 (1996)). Abstention is appropriate
if: “(1) there are sensitive issues of social policy upon which
the federal courts ought not to enter unless no alternative to
its adjudication is open, (2) constitutional adjudication could
be avoided by a state ruling, and (3) resolution of the state
law issue is uncertain.” Wolfson v. Brammer, 616 F.3d 1045,
1066 (9th Cir. 2010) (citation omitted).
In this instance, whatever might be said about the first
two factors, the last factor is plainly not satisfied. This case
does not present a close question of state law. The resolution
24 SLIDEWATERS V. WASH. STATE DEP’T OF LABOR
of a state law issue is “uncertain” when “a federal court
cannot predict with any confidence how the state’s highest
court would decide an issue of state law.” Courtney v. Goltz,
736 F.3d 1152, 1163 (9th Cir. 2013) (quoting Pearl Inv. Co.
v. City & Cnty. of San Francisco, 774 F.2d 1460, 1465 (9th
Cir. 1985)). That is not true here, for the reasons already
discussed. The state law claims did not require abstention
under the Pullman doctrine.
Slidewaters also argues that the district court should have
certified state law questions to the Washington Supreme
Court. It did not raise that alternative to the district court,
either.
The use of certification “in a given case rests in the sound
discretion of the federal court.” Lehman Brothers v. Schein,
416 U.S. 386, 391 (1974). “Our system of ‘cooperative
federalism’ presumes federal and state courts alike are
competent to apply federal and state law.” Mckesson v. Doe,
141 S. Ct. 48, 51 (2020). Certification is appropriate when it
is “uncertain” how the state high court would resolve the state
law issue. See Allied Premier Ins. v. United Fin. Cas. Co.,
991 F.3d 1070, 1076 (9th Cir. 2021). Certification of
questions to the Washington Supreme Court was not required
in this instance, though, as the answers to the state law
questions were not uncertain.
Finally, Slidewaters attempts to bolster its broad assertion
that the district court should not have adjudicated the state
law issues presented by Slidewaters’ own complaint and
motion for injunctive relief. It does so by asserting that it was
“improper” for the district court to exercise jurisdiction over
its state law claims while ultimately remanding Defendants’
SLIDEWATERS V. WASH. STATE DEP’T OF LABOR 25
counterclaim to state superior court. Exactly what was
legally “improper” about it has not been specified.
As the district court explained in its order, upon the
dismissal of Slidewaters’ complaint, including its federal
constitutional claim, there was no longer a basis for federal
question jurisdiction remaining in the case. The court thus
declined to exercise supplemental jurisdiction under
28 U.S.C. § 1367(c). Slidewaters does not contest the
soundness of that explanation under the law. Moreover, as
noted above, at 8, that counterclaim was dismissed by
Defendants, so Slidewaters was not prejudiced by the remand
in any event.
The district court did not abuse its discretion by
remanding Defendants’ state law claim. See Acri v. Varian
Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (“[I]n the
usual case in which federal-law claims are eliminated before
trial, the balance of factors . . . will point toward declining to
exercise jurisdiction over the remaining state law claims.”
(alteration in original) (quoting Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988))). It also did not abuse
its discretion in treating the two sets of claims differently as
the litigants did not treat the claims similarly. Slidewaters’
claims were fully briefed whereas Defendants’ claim was not.
Resolving the fully briefed claims while remanding the
untouched claim was not an abuse of discretion but rather an
exercise of judicial economy. See Oliver v. Ralphs Grocery
Co., 654 F.3d 903, 911 (9th Cir. 2011).
We affirm the judgment of the district court.
AFFIRMED.