Creamer v. District of Columbia

• Court: District Court, District of Columbia
• Decided: June 15, 2023
• Docket: Civil Action No. 2022-1874
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KAREN CREAMER, et al.,

Plaintiffs,

v. Civil Action No. 1:22-cv-01874 (CJN)

DISTRICT OF COLUMBIA, et al.,

Defendants.

ORDER

Plaintiffs are five telephonic advice nurses who hold nursing licenses in the District of

Columbia. Compl. ¶ 14, ECF No. 1. When they filed this suit, the District required them to be

vaccinated against COVID-19 as a condition of keeping their licenses, unless they received

exemptions. Since then, the District has revised that regulation, and the nurses now concede that

they face no adverse consequences for failing to vaccinate. 5/9/23 Joint Status Report at 2, ECF

No. 22. They have accordingly withdrawn their request for injunctive relief. Id.

They nevertheless maintain their requests for declaratory relief and damages. As they put

it, although they have agreed to “withdraw their demand for declaratory judgment on the issue of

whether [the regulation] is legally invalid,” they still seek a declaratory “ruling that [the regulation]

was legally invalid as enacted and imposed upon them.” Id. at 3. Such a ruling is necessary, say

the nurses, because it “goes to the core issue of the cognizable harm already caused by [the

District’s] illegal actions, for which [the nurses] have sought damages.” Id.

To obtain declaratory relief, plaintiffs ordinarily “must allege ongoing or imminent injury,

rather than purely past injury.” Nat’l Ass’n of Home Builders v. EPA, 786 F.3d 34, 40 (D.C. Cir.

2015); see also Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). As noted above, the nurses

1 have acknowledged the lack of ongoing or imminent injury by withdrawing their request for

injunctive relief. Still, courts have held that plaintiffs “may seek a retrospective declaratory

judgment”—that is, declaratory relief premised on past harm—when the request is “intertwined

with a claim for monetary damages that requires [the court] to declare whether a past constitutional

violation occurred.” Fludd v. Mitchell, 181 F. Supp. 3d 132, 140 (D.D.C. 2016) (quotations

omitted).

But the nurses fail to identity any concrete harm that can be redressed by damages (nominal

or otherwise). See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797 (2021) (holding that “a plaintiff

who sues over a completed injury” can establish standing “by requesting only nominal damages”)

(emphasis added). The upshot of the Complaint is that the nurses will “likely begin incurring

damages” if their licenses are not timely renewed. Compl. ¶¶ 64, 71–74. But it is undisputed that

all five nursing licenses were renewed without lapse for a period of two years. 7/5/22 Joint Status

Report, ECF No. 9. The nurses cannot establish a past injury that is redressable by damages simply

by alleging that the regulation, as originally enacted, violated (or risked violating) federal and D.C.

law. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205–07 (2021). Nor can they do so by resting

only on the costs of bringing this lawsuit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

107 (1998).

In short, this action does not present a live case or controversy for the Court to resolve. 1 It

is accordingly

1 To the extent the nurses rely on the doctrine of voluntary cessation (and assuming that the doctrine is even relevant here given the relief sought), there’s still no live dispute. For a claim to be ripe, there must be “some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” Air Line Pilots Ass’n, Int’l v. Nw. Airlines, Inc., 199 F.3d 477, 486 (D.C. Cir. 1999) (quotations omitted). Given the revised regulations, together with the previous grant of exemptions and license renewals, it is far too speculative that any alleged harm will recur.

2 ORDERED that the Defendants’ Motion to Dismiss, ECF No. 14, is GRANTED, and the

Plaintiffs’ Cross Motion for Summary Judgment, ECF No. 17, is DENIED AS MOOT.

This is a final appealable order.

The Clerk is directed to terminate the case.

DATE: June 15, 2023 CARL J. NICHOLS United States District Judge