Sitio Nova Venécia
VENDO
As regras do Tribunal de Apelações do 9º Circuito dos EUA que as injeções de mRNA COVID-19 não se qualificam como vacinas segundo as definições médicas tradicionais.
A decisão pode significar que as empresas farmacêuticas estão agora vulneráveis a ações legais, uma vez que as vacinas recebem proteções de responsabilidade.
O Tribunal de Apelações do 9º Circuito decidiu que as vacinas de mRNA da COVID-19 não se qualificam como vacinas, uma decisão que poderia expor as empresas farmacêuticas que as fabricaram a futuras ações judiciais de responsabilidade.
A decisão centra-se numa ação movida pelo Health Freedom Defense Fund (HFDF) e outros demandantes contra o Distrito Escolar Unificado de Los Angeles (LAUSD) sobre o seu mandato de que todos os funcionários devem ser totalmente vacinados contra a COVID-19 num prazo especificado.
O juiz de circuito R. Nelson escreveu na sexta-feira que as injeções de mRNA, comercializadas como vacinas, não previnem efetivamente a transmissão de COVID-19, mas apenas reduzem os sintomas naqueles que contraem o vírus, o que não as torna vacinas tradicionais descritas no caso Jacobson v de 1905. Caso Massachussets .
Jacobson v. Massachusetts manteve o direito do estado de impor a vacinação contra a varíola devido à sua eficácia comprovada na prevenção da propagação da doença, mas as vacinas COVID-19 não oferecem os mesmos benefícios.
Abordando o mérito, o painel considerou que o tribunal distrital aplicou mal a decisão do Supremo Tribunal no caso Jacobson v. Massachusetts , 197 US 11 (1905), ao concluir que a Política sobreviveu à revisão de base racional. Jacobson sustentou que as vacinações obrigatórias estavam racionalmente relacionadas com a prevenção da propagação da varíola.
Aqui, contudo, os demandantes alegam que a vacina não previne eficazmente a propagação, mas apenas atenua os sintomas para o receptor e, portanto, é semelhante a um tratamento médico e não a uma vacina “tradicional”. Tomando as alegações dos demandantes como verdadeiras nesta fase do litígio, os demandantes alegaram plausivelmente que a vacina contra a COVID-19 não “previne eficazmente a propagação” da COVID-19. Assim, Jacobson não se aplica.
A decisão reverte a rejeição do caso por um tribunal de primeira instância contra o mandato da vacina do LAUSD.
“Revertendo a decisão do Distrito Central da Califórnia em Los Angeles, a maioria do Nono Circuito considerou que, primeiro, o caso não foi discutido pela rescisão do mandato do LAUSD após argumentação oral em setembro de 2023”, disse HFDF em um comunicado. “A maioria chamou a atenção do jogo do LAUSD pelo que realmente era – uma tentativa descarada de evitar uma decisão adversa ao tentar criar uma questão discutível.”
O presidente da HFDF, Leslie Manookian, comemorou a decisão como uma vitória para a autonomia corporal.
“A decisão do Nono Circuito demonstra hoje que o tribunal viu através dos negócios sujos do LAUSD e, ao fazê-lo, deixou claro que os direitos estimados dos americanos à autodeterminação, incluindo o direito sagrado à autonomia corporal em questões de saúde, não são negociáveis. Este é um grande triunfo para a verdade, a decência e o que é certo.”
Notavelmente, os Centros de Controle e Prevenção de Doenças (CDC) alteraram a definição de “vacina” em 2021 para incluir as injeções experimentais de mRNA.
As vacinas costumavam ser definidas como “um produto que estimula o sistema imunológico de uma pessoa a produzir imunidade a uma doença específica”.
Mas o CDC modificou-o para “uma preparação que é usada para estimular a resposta imunitária do corpo contra doenças”.
Por outras palavras, a injeção de mRNA não estimulou a imunidade à COVID-19, pelo que o CDC teve de alterar a definição de vacina.
Uma vez que o tribunal decidiu que as vacinas contra a COVID-19 não se enquadram na definição tradicional de vacina, levantam-se questões sobre se as empresas farmacêuticas que fabricaram as vacinas estão agora vulneráveis a ações legais.
“O 9º Circuito acabou de retirar as injeções de mRNA da proteção de responsabilidade legal”, escreveu a Dra. Jane Ruby no X. “O 9º Circuito disse que não é uma vacina se a alegação não for PREVENIR A PROPAGAÇÃO. Afirmou-se que as injeções de COVID ‘reduzem os sintomas’ e previnem a hospitalização…Essas alegações fazem delas um TRATAMENTO.”
VEJA A DECISÃO:
HEALTH FREEDOM DEFENSEFUND, INC., a Wyoming Not-for-Profit Corporation; JEFFREYFUENTES; SANDRA GARCIA;HOVHANNES SAPONGHIAN; NORMA BRAMBILA;CALIFORNIA EDUCATORS FORMEDICAL FREEDOM,
Plaintiffs-Appellants
,v.ALBERTO CARVALHO, in hisofficial capacity as Superintendent ofthe Los Angeles United SchoolDistrict; ILEANA DAVALOS, in herofficial capacity as Chief HumanResources Officer for the Los AngelesSchool District; GEORGEMCKENNA; MONICA GARCIA;SCOTT SCHMERELSON; NICKMELVOIN; JACKIE GOLDBERG;KELLY GONEZ; TANYA ORTIZFRANKLIN, in their officialcapacities as members of the LosAngeles Unified School Districtgoverning board,
Defendants-Appellees
.
No.
22-55908D.C. No.2:21-cv-08688-DSF-PVCOPINION
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Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted September 14, 2023
Seattle, Washington
Filed June 7, 2024
Before: Michael Daly Hawkins, Ryan D. Nelson, andDaniel P. Collins, Circuit Judges.
Opinion by Judge R. Nelson;
Concurrence by Judge R. Nelson;
Concurrence by Judge Collins;
Dissent by Judge Hawkins
SUMMARY
The panel vacated the district court’s order dismissing plaintiffs’ action alleging that the COVID
-19 vaccination policy of the Los Angeles Unified School District
(“LAUSD”)—
which, until twelve days after oral argument,required employees to get the COVID-19 vaccination or losetheir jobs
—
interfered with their fundamental right to refusemedical treatment.
*
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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The panel held that the voluntary cessation exception to
mootness applied. LAUSD’s pattern of withdrawing and
then reinstating its vaccination policies was enough to keepthis case alive. The record supported a strong inference thatLAUSD waited to see how the oral argument in this court proceeded before determining whether to maintain thePolicy or to go forward with a pre-prepared repeal option.LAUSD expressly reserved the option to again considerimposing a vaccine mandate. Accordingly, LAUSD has notcarried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy.Addressing the merits, the panel held that the district
court misapplied the Supreme Court’s decision in
Jacobsonv. Massachusetts
, 197 U.S. 11 (1905), in concluding that thePolicy survived rational basis review.
Jacobson
held thatmandatory vaccinations were rationally related to preventingthe spread of smallpox. Here, however, plaintiffs allege thatthe vaccine does not effectively prevent spread but onlymitigates symptoms for the recipient and therefore is akin toa me
dical treatment, not a “traditional” vaccine. Taking plaintiffs’ allegations as true at this stage of litigation,
plaintiffs plausibly alleged that the COVID-19 vaccine does
not effectively “prevent the spread” of COVID
-19. Thus,
Jacobson
does not apply.Concurring, Judge R. Nelson wrote separately to point
out that this Circuit’s intervening case
Kohn v. State Bar ofCalifornia
, 87 F.4th 1021 (9th Cir. 2023) (en banc), raises
the question of whether the district court’s holding that the
Los Angeles Unified School District is entitled to sovereignimmunity should be revisited on remand.
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Concurring, Judge Collins wrote separately to address acrucial point that the district court overlooked. Pursuant tomore recent Supreme Court authority, compulsory treatmentfor the health benefit of the person treated
—
as opposed tocompulsory treatment for the health benefit of others
—
implicates the fundamental right to refuse medical treatment.
Plaintiffs’ allegations here are sufficient to invoke that
fundamental right. Defendants note that the vaccination
mandate was imposed merely as a “condition ofemployment,” but that does not suffice to justify the districtcourt’s application of rational
-basis scrutiny.Dissenting, Judge Hawkins wrote that because there isno longer any policy for this court to enjoin, he would, asthis court has done consistently in actions challengingrescinded early pandemic policies, hold that this action ismoot, vacate the district
court’s decision, and remand with
instructions to dismiss the action without prejudice.
COUNSEL
John W. Howard (argued) and Scott J. Street, JW HowardAttorneys LTD., San Diego, California; George R. Wentz,Jr., The Davillier Law Group LLC, New Orleans, Louisiana;for Plaintiffs-Appellants.Connie L. Michaels (argued), Littler Mendelson PC, LosAngeles, California; Carrie A. Stringham, Littler MendelsonPC, San Diego, California; for Defendants-Appellees.
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OPINION
R. NELSON, Circuit Judge:
For over two years—until twelve days after argument— Los Angeles Unified School District (LAUSD) requiredemployees to get the COVID-19 vaccination or lose their jobs. LAUSD has not carried its “formidable burden” toshow that it did not abandon this policy because of litigation,and thus that “no reasonable expectation remains that it willreturn to its old ways.”
Cf.
FBI v. Fikre
, 601 U.S. 234, 241(2024) (cleaned up). So this case is not moot.
See id.
Onthe merits, the district court misapplied the Supreme Court’sdecision in
Jacobson v. Massachusetts
, 197 U.S. 11 (1905),stretching it beyond its public health rationale. We vacatethe district court’s order dismissing this claim and remandfor further proceedings under the correct legal standard.I
This case is about LAUSD’s COVID-19 vaccination policy. LAUSD has reversed course several times. Becauseof its importance to the mootness issue, we recount thathistory in detail.
LAUSD issued its first policy on March 4, 2021. That policy was challenged two weeks later in a lawsuit filed byPlaintiff California Educators for Medical Freedom (CEMF)and several individual plaintiffs. According to CEMF’scomplaint, LAUSD’s policy required employees to get the
1
We may properly take judicial notice that various statements were madein filings in related litigation.
See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.
, 971 F.2d 244, 248 (9th Cir.1992). But we do not take those statements themselves as true.
See Khoja v. Orexigen Therapeutics, Inc.
, 899 F.3d 988, 999 (9th Cir. 2018).
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COVID-19 vaccine, no exceptions. The March 4memorandum announcing this policy was attached to thecomplaint. This memorandum stated that employees would“be notified to make an appointment through the District’svaccination program when it is their turn to get vaccinated.”
See
CEMF v. LAUSD
, No. 21-cv-02388, 2021 WL 1034618,Dkt. 1, Ex. F at 1 (C.D. Cal. Mar. 17, 2021). It added that“District employees may either participate in the District’sCOVID-19 vaccination program or provide vaccinationdocumentation in the form of an official Vaccination Recordcertified by a medical professional.”
Id.
For those whochose the latter option, the memorandum providedinstructions on how to “submit proof of vaccination from anexternal medical provider through the LAUSD Daily Pass”website.
Id.
It specified that “[c]urrent District employeeswill submit documentation of COVID-19 vaccinationthrough the Daily Pass web portal athttp://DailyPass.lausd.netas indicated in their vaccinationnotification.”
Id.
at 2. The memorandum said nothing aboutan option to submit to COVID testing rather than submittingvaccine verification.The very next day after CEMF filed suit, LAUSDreversed course and issued a “clarifying memorandum” thatgave employees an option to test for COVID-19 if they didnot want to get the vaccine. Relying on this clarifyingmemorandum, which LAUSD claimed did not impose“mandatory vaccinations,” LAUSD moved to dismissCEMF’s suit because, among other things, it was “mootand/or premature.” LAUSD disputed whether CEMF hadadequately pleaded that exemptions would not be allowed.But LAUSD did not dispute CEMF’s contention that theMarch 4 memorandum was properly construed “as requiringDistrict employees to be vaccinated.” Instead, LAUSD
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argued that, considering the March 18 “clarifyingmemorandum” allowing a testing alternative—issued afterthe lawsuit was filed—the case was moot or unripe. CEMFargued that the complaint properly alleged that a mandatory policy was in place when the suit was filed, and that the post-filing clarifying memorandum could not establish mootnessunder the voluntary cessation doctrine. CEMF’s positionwas bolstered by its citation in the complaint to a letter fromthe LAUSD employees’ union, which stated that “[a]llDistrict employees will be required to be vaccinated,” and“[n]o exceptions have been made.”
See
CEMF
, No. 21-cv-2388, 2021 WL 1034618, Dkt. 1, Ex. G at 2. In its reply brief LAUSD shifted its position and explicitly denied thatthe March 4 memorandum “reflects a mandatory vaccination policy.” LAUSD argued that the March 18 memorandumwas “merely a clarification” of the “original March 4, 2021memorandum.”On July 27, 2021, the district court dismissed thecomplaint, holding that CEMF’s claims were not ripe. Noting that CEMF’s amended complaint had cited theMarch 18 memorandum, the district court held that,considering the then-existing testing option, “there is nothreat of future injury because LAUSD explicitly stated it isnot requiring vaccines.” The court held that it was“completely speculative” whether “LAUSD will begin torequire vaccination of all employees at some point in thefuture and will not offer exemptions” for the plaintiffs. Thecourt acknowledged CEMF’s allegations about the March 4 policy memorandum. Still, the court held that, because that policy was changed before it was ever enforced, the disputeremained unripe. “That Defendants were contemplatingrequiring the vaccine, and then later reversed course and
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explicitly said they would not be, does not create a ripe caseor controversy.”Having obtained dismissal of CEMF’s suit on thesegrounds, LAUSD reversed course again two weeks later. Itsnew policy (the Policy), adopted on August 13, 2021,expressly eliminated the testing option on which the districtcourt’s July 27 dismissal had been based. The Policyrequired that all LAUSD employees be fully vaccinatedagainst COVID-19 by October 15, 2021. Like the earlierMarch 4 memorandum, the Policy required those who arevaccinated outside of LAUSD’s own program to submit proof of vaccination through the “Daily Pass” web portal.The Policy ostensibly provided for religious and medicalexemptions. But each of the individual plaintiffs here wereallegedly denied accommodations, thus rendering anyexemptions “illusory.”CEMF sued again, this time joined by Health FreedomDefense Fund, Inc. and new individual plaintiffs(collectively, Plaintiffs). They named as defendantsLAUSD employees and Board members in their officialcapacities. Plaintiffs challenged the Policy as violating theFourteenth Amendment, among other claims. Only thesubstantive due process and equal protection claims broughtunder 42 U.S.C. § 1983 are on appeal. Plaintiffs ask forfuture relief, including declaring the Policy unconstitutionaland enjoining LAUSD from requiring it.Plaintiffs claim that the Policy interferes with theirfundamental right to refuse medical treatment. Theircomplaint’s crux is that the COVID-19 “vaccine” is not avaccine. “Traditional” vaccines, Plaintiffs claim, should prevent transmission or provide immunity to those who getthem. But the COVID-19 vaccine does neither. At best,
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Plaintiffs suggest, it mitigates symptoms for someone whohas gotten it and then gets COVID-19. But this makes it amedical
treatment
, not a vaccine.Plaintiffs’ complaint supports these assertions with dataand statements from the Centers for Disease Control andPrevention (CDC). For example, Plaintiffs claim that theCDC changed the definition of “vaccine” in September2021, striking the word “immunity.” Thus, they argue, theCDC conceded that the COVID-19 vaccine is not a“traditional vaccine.” They also cite CDC statements thatsay the vaccine does not prevent transmission, and thatnatural immunity is superior to the vaccine.LAUSD moved for judgment on the pleadings,requesting judicial notice of the attached CDC information.This included information about the COVID-19 death countand number of cases, as well as the vaccine’s safety andeffectiveness. For example, the CDC says that “COVID-19vaccines are
safe and effective
.”The district court granted LAUSD’s motion.
Health Freedom Def. Fund v. Reilly
, No. CV-21-8688, 2022 WL5442479, at *7 (C.D. Cal. 2022). The district court took judicial notice of LAUSD’s attached documents.
Id.
at *2– 3. Then, applying a rational basis review, the district courtheld that the Policy does not implicate any fundamentalright,
id.
at *5, and that LAUSD had a legitimate government purpose in requiring the COVID-19 vaccination,
id.
at *6.The district court held that the COVID-19 vaccine’sreduction in symptoms and prevention of severe disease anddeath in recipients survived rational basis review, even if itdid not prevent transmission or contraction.
Id.
The district court largely relied on
Jacobson v. Massachusetts
, 197 U.S. 11 (1905), in concluding that the
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Policy survived rational basis review.
Reilly
, 2022 WL5442479, at *5–6. Plaintiffs argued that the COVID-19vaccine is a “medical treatment” and not a traditionalvaccine.
Id.
at *5. The district court disagreed, holding that“
Jacobson
does not require that a vaccine have the specific purpose of
preventing
disease.”
Id.
(emphasis in original).
Plaintiffs appealed the district court’s order. In April2023, LAUSD filed its answering brief. It vigorouslydefended its vaccine mandate and did not raise anysuggestion that it might be revoked. We held oral argumenton the morning of September 14, 2023. The case wascalendared together with two similar appeals involving therejection of challenges to vaccine mandates that had beenimposed on state employees by Oregon and Washington.But Oregon and Washington revoked their mandates beforethe answering briefs were filed in those cases. Theytherefore sought dismissal of the claims for prospectiverelief in those cases as moot.LAUSD’s counsel was asked at oral argument about thecontrast with those cases and whether LAUSD couldmaintain the Policy indefinitely. LAUSD’s counselresponded that the Policy was properly still in place because“there are Covid spikes right now.” Counsel stated thatLAUSD was “very concerned about maintaining the healthof [its] staff” and believed that COVID vaccines shouldcontinue to be required “until it is absolutely established thatthe vaccines have no effect.” When again pressed about thecontrast with the two other argued cases about vaccinemandates, counsel stated that “with respect to what thedistrict is going to do now, what they’re considering doingnow, there is only so much I can tell you, because it’s not inthe record.” Counsel then reaffirmed LAUSD’s view that“with respect to the vaccination requirement, they have felt
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that until it is established that the vaccine is not of use in anyway that it is important to go ahead and maintain it.”LAUSD’s counsel also repeatedly defended theconstitutionality of its vaccine mandate.According to a declaration submitted by Plaintiffs’counsel, LAUSD’s attorney turned to him as they wereleaving the courtroom and said, “What are you going to dowhen we rescind the mandate?” That same day, LAUSD’sSuperintendent (the Superintendent) submitted to theLAUSD Board (the Board) of Education a proposal to repealthe mandate.
Twelve days later, (the Board) voted torescind the Policy by a six to one vote, with one abstention.This lawsuit was mentioned by members of the public at themeeting of the Board. Indeed, one commenter playedexcerpts from the publicly available audio recording of theoral argument in this court.
The Superintendent submittedmaterials in support of repeal that stated that, because thevirus was no longer “spreading at a rapid enough pace tooverwhelm hospital systems,” LAUSD “no longer need[ed]a COVID-19 vaccine requirement to keep schools open for
2
Plaintiffs’ Motion for Judicial Notice is
GRANTED
in part and
DENIED
in part. We take judicial notice that LAUSD voted towithdraw the Policy on September 26, 2023, and that various documentswere submitted, and statements made, in connection with that repeal.
See Lee v. City of Los Angeles
, 250 F.3d 668, 689–90 (9th Cir. 2001).But we do not take judicial notice of the truth of the claims made in suchwritten or oral statements.
Id.
;
see also Owino v. Holder
, 771 F.3d 527,534 n.4 (9th Cir. 2014) (denying request for judicial notice of articlewhere “[t]he government does not concede that the facts [included] are beyond dispute.”).
3
LAUSD,
September 26th, 2023 – 1pm Regular Board Meeting
,Y
OU
T
UBE
Meeting
).
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in-person learning.” They explained that “[t]he science [onvaccines] has not changed” and they are still “safe andeffective.” And they also cautioned that LAUSD wouldcontinue to monitor COVID-19, and if “health conditionsnecessitate a revisiting of the COVID-19 vaccinerequirement,” LAUSD would reconsider the Policy.Comments made by LAUSD officials and Boardmembers at the meeting generally followed these statements.The one Board member who voted against the repeal,
Dr.
McKenna, said he was “not afraid of litigation” or the“zealousness
that will come out with
lawsuits” brought by
employees who lost their jobs.
Meeting
(59:20 – 1:00:48).Likewise, Board President Goldberg said that she had a “foot
in [the]
camp with Dr. McKenna.”
Id.
(1:13:12 – 1:15:12).While she acknowledged that the virus was now “endemic,”she also said she did not regret imposing the mandate for“one moment, not 30 seconds, not one tiny bit.”
Id.
(1:13:15–22). When the vote on the repeal was called, shevoted, “Reluctantly, yes.”
Id.
(1:18:23–26).LAUSD then asked us to dismiss the appeal, claimingthat the case is now moot. Plaintiffs objected, arguing thatLAUSD withdrew the Policy because they feared an adverseruling.II
“Judgments on the pleadings are reviewed de novo.”
George v. Pac.-CSC Work Furlough
, 91 F.3d 1227, 1229(9th Cir. 1996). We review under the same standards as amotion to dismiss.
Gregg v. Haw., Dep’t of Pub. Safety
, 870F.3d 883, 887 (9th Cir. 2017). So we must accept the plaintiffs’ alleged facts as true, whether “actual proof” ofthem is “improbable.”
Bell Atl. Corp. v. Twombly
, 550 U.S.544, 556 (2007). If the parties provide competing but
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plausible explanations, the plaintiffs’ complaint survives.
Starr v. Baca
, 652 F.3d 1202, 1216 (9th Cir. 2011). Thus,we can affirm for the moving party only if there are nomaterial and unresolved facts, and the plaintiffs’ claims failas a matter of law.
George
, 91 F.3d at 1229.III
We begin by analyzing whether this appeal is now moot because of LAUSD’s recent policy reversal. BecauseLAUSD acted after this litigation was filed, we must decidewhether the voluntary cessation exception to mootnessapplies.
See, e.g.
,
Trinity Lutheran Church of Columbia, Inc.v. Comer
, 582 U.S. 449, 457 n.1 (2017).“[A] case is moot when the issues presented are nolonger ‘live’ or the parties lack a legally cognizable interestin the outcome.”
Los Angeles County v. Davis
, 440 U.S.625, 631 (1979) (quoting
Powell v. McCormack
, 395 U.S.486, 496 (1969)). But generally, a party’s decision to stopthe challenged conduct does not take away our “power tohear and determine the case.”
Id.
(quoting
United States v.W.T. Grant Co.
, 345 U.S. 629, 632 (1953)).Sometimes, however, voluntary cessation can moot acase. First, it must be reasonably clear that the challenged practice will not happen again.
Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc.
, 528 U.S. 167, 189 (2000).Second, any effects of the alleged violation must be permanently reversed.
Davis
, 440 U.S. at 631. This is a
“formidable burden”
a
nd “holds for governmental
defendants no less than for private ones.
”
Fikre
, 601 U.S. at241.
LAUSD’s
pattern of withdrawing and then reinstating itsvaccination policies is enough to keep this case alive.
See
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Fikre v. FBI
, 904 F.3d 1033, 1039 (9th Cir. 2018) (
“
[A]claim is not moot if the government remains practically andlegally free to return to [its] old ways despite abandoning
them in the ongoing litigation.” (citing
W.T. Grant
, 345 U.S.at 632) (internal quotation marks omitted)). Twice LAUSDhas withdrawn its policy only after facing some litigationrisk. LAUSD immediately rescinded its prior policy aftersome plaintiffs first sued, and LAUSD then asked the districtcourt to dismiss for mootness or ripeness.
But then just twoweeks after securing a dismissal on those grounds, LAUSDimplemented the Policy, which has remained in effect forover two years.We held oral argument on the morning of September 14,2023, where LAUSD’s counsel was vigorously questioned.That same day LAUSD submitted a report recommendingrescission of the Policy. Twelve days later, LAUSDwithdrew the Policy.
Litigants who have already demonstrated theirwillingness to tactically manipulate the federal courts in thisway should
not
be given any benefit of the doubt.
LAUSD’s
about-face occurred only after vigorous questioning atargument in this court, which suggests that it was motivated,at least in part, by litigation tactics.
See R.W. v. Columbia Basin Coll.
, 77 F.4th 1214, 1226 (9th Cir. 2023). Forexample, in
Columbia Basin College
, we upheld a findingthat the voluntary-cessation-mootness burden had not beenmet.
Id.
We were persuaded by the district court, whichnoted the
defendants’
strategic timing of sending a letter purporting to moot the case more than three years afterlitigation but only one month before moving on mootness.
Id.
Here too, LAUSD’s timing is suspect.
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Rather than hold LAUSD to its “formidable burden,”
see Fikre
, 601 U.S. at 241, the dissent consistently draws highlydebatable inferences for LAUSD in evaluating LAUSD’sactions in the two vaccine-related lawsuits filed against it.But federal judges “are ‘not required to exhibit a naivetéfrom which ordinary citizens are free.’”
Dep’t of Com. v. New York
, 588 U.S. 752, 139 S.
Ct. 2551, 2575 (2019)(citation omitted). Given the detailed procedural historysummarized earlier, the record at least supports a stronginference that LAUSD waited to see how the oral argumentin this court proceeded before determining whether tomaintain the Policy or to go forward with a pre-preparedrepeal option. LAUSD appears to have twice sought tomanipulate the federal courts to avoid an adverse ruling onthis issue. Moreover, the Board expressly reserved theoption to again consider imposing a vaccine mandate. Thisconfirms that LAUSD has not carried its heavy burden toshow that there is no reasonable possibility that it will againrevert to imposing a similar policy.
We must view any strategic moves designed to keep usfrom reviewing challenged conduct with a
“critical eye.”
See Knox v. Serv. Emps. Int’l Union, Loc
. 1000
, 567 U.S.298, 307 (2012). Comments made by Board membersconfirm that its policy rescission aimed to avoid litigation.For example, Dr. McKenna
—
the sole Board member to voteagainst withdrawal of the Policy
—
justified his vote because
he was “not
afraid of litigation
” or the “
zealousness that willcome out with lawsuits
”
brought by employees who losttheir jobs. Likewise, Board President Goldberg said that she
had a “foot in
[the] camp
”
with Dr. McKenna, and so
“reluctantly”
voted to rescind. These comments show thatthe Board was aware of, and responding to, the pending
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litigation. LAUSD therefore is no longer entitled to any presumption of regularity.
The dissent disagrees, citing distinguishable casesinvolving challenges to COVID-19 policies. We found ineach case that the government entity did not intentionallyabandon its policy because of litigation risk but for otherintervening reasons.
See, e.g.
,
Brach v. Newsom
, 38 F.4th 6,12 (9th Cir. 2022) (“The State did not rescind its schoolclosure orders in response to the litigation—the orders‘expired by their own terms’ . . .”);
McDonald v. Lawson
, 94F.4th 864, 869 (9th Cir. 2024) (“[N]othing in the record . . .indicates that [the State’s assertion that it would not enforcethe challenged rule] was made in bad faith.” (citationomitted));
Seaplane Adventures, LLC v. County of Marin
, 71F.4th 724, 732 (9th Cir. 2023) (given that California’s stateof emergency ended, “there is no indication that the Countycan or will reimpose restrictions similar to those in effect atthe very beginning of the pandemic.”);
Donovan v. Vance
,70 F.4th 1167, 1172 (9th Cir. 2023) (explaining that becausethe vaccine mandate exemption was based on executiveorders that no longer exist, no relief is available). Indeed,this panel unanimously reached the same conclusion aboutthe withdrawal of the vaccine mandates imposed by Oregonand Washington.
See Johnson v. Kotek
, 2024 WL 747022,at *1 (9th Cir. 2024) (dismissing the claims for prospectiverelief as moot);
Pilz v. Inslee
, 2023 WL 8866565, at *1 (9thCir. 2023) (same). As explained above, LAUSD’s actionsdo not suggest the same intent as existed in these other cases.Here, unlike in
Lawson
, the evidence shows that LAUSDacted at least partially in bad faith to avoid litigation risk inagain changing the Policy. And unlike in
Seaplane Adventures
, LAUSD has shown that they “can or willreimpose” similar restrictions.
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Thus, the voluntary cessation exception to mootnessapplies.
See id.
;
see also Pub. Utils. Comm
’n of State of Cal.
v. FERC
, 100 F.3d 1451, 1460 (9th Cir. 1996) (“
in order for
[the voluntary cessation] exception to apply, the defendant’s
[changed action] must have arisen
because of
the litigation.”
IV
We now turn to the merits. The district court held,applying rational basis review under
Jacobson
, that thePolicy satisfied a legitimate government purpose. But thedistrict court’s analysis diverges from
Jacobson
. We thusvacate the district court’s opinion and remand.The district court relied on
Jacobson
to hold that thePolicy was rooted in a legitimate government interest.
Reilly
, 2022 WL 5442479, at *5
−
6. But
Jacobson
does notdirectly control based on Plaintiffs’ allegations. In
Jacobson
, the Supreme Court balanced an individual’sliberty interest in declining an unwanted smallpox vaccineagainst the State’s interest in preventing disease. 197 U.S.at 38. The Court explained that the “principle ofvaccination” is “to prevent the spread of smallpox.”
Id.
at31–32. Because of this, the Court concluded that the State’sinterest superseded Jacobson’s liberty interest, and thevaccine requirement was constitutional.
Id.
Plaintiffs argue that a “traditional vaccine” must provideimmunity and prevent transmission, meaning that it must“prevent the spread” of COVID-19. Plaintiffs allege that thevaccine does not effectively prevent spread, but onlymitigates symptoms for the recipient. And Plaintiffs claimthat something that only does the latter, but not the former,
4
For these reasons, LAUSD’s Motion to Dismiss is
DENIED
.
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is like a medical treatment, not a “traditional” vaccine. Thisinterpretation distinguishes
Jacobson
, thus presenting adifferent government interest.Putting that aside, the district court held that, even if it istrue that the vaccine does not “prevent the spread,”
Jacobson
still dictates that the vaccine mandate challenged here issubject to, and survives, the rational basis test. The districtcourt reasoned that “
Jacobson
does not require that a vaccinehave the specific purpose of
preventing
disease.”
Reilly
,2022 WL 5442479, at *5 (emphasis in original). Itacknowledged Plaintiffs’ allegations that the vaccine did not“prevent transmission or contraction of COVID-19.”
Id.
at*6. But it declared that “these features of the vaccine furtherthe purpose of protecting LAUSD students and employeesfrom COVID-19,” and thus “the Policy survives rational basis review.”
Id.
This misapplies
Jacobson
.
Jacobson
held thatmandatory vaccinations were rationally related to“preventing the spread” of smallpox. 197 U.S. at 30;
seealso Roman Cath. Diocese of Brooklyn v. Cuomo
, 592 U.S.14, 23 (2020) (Gorsuch, J., concurring) (“Although
Jacobson
pre-dated the modern tiers of scrutiny, this Courtessentially applied rational basis review to HenningJacobson’s challenge . . .”).
Jacobson
, however, did notinvolve a claim in which the compelled vaccine was“designed to reduce symptoms in the infected vaccinerecipient rather than to prevent transmission and infection.”
Reilly
, 2022 WL 5442479, at *5. The district court thuserred in holding that
Jacobson
extends beyond its publichealth rationale—government’s power to mandate prophylactic measures aimed at preventing the recipientfrom spreading disease to others—to also govern “forcedmedical treatment” for the recipient’s benefit.
Id.
at *5.
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At this stage, we must accept Plaintiffs’ allegations thatthe vaccine does not prevent the spread of COVID-19 astrue.
Twombly
, 550 U.S. at 556. And, because of this,
Jacobson
does not apply. LAUSD cannot get around thisstandard by stating that Plaintiffs’ allegations are wrong. Nor can LAUSD do so by providing facts that do notcontradict Plaintiffs’ allegations. It is true that we “need not[] accept as true allegations that contradict matters properlysubject to judicial notice.”
Sprewell v. Golden StateWarriors
, 266 F.3d 979, 988 (9th Cir. 2001). But even if thematerials offered by LAUSD are subject to judicial notice,they do not support rejecting Plaintiffs’ allegations. LAUSDonly provides a CDC publication that says “COVID-19vaccines are safe and effective.” But “safe and effective” forwhat? LAUSD implies that it is for preventing transmissionof COVID-19 but does not adduce judicially noticeable factsthat prove this.We note the preliminary nature of our holding. We donot prejudge whether, on a more developed factual record,Plaintiffs’ allegations will prove true. But “[w]hether anaction ‘can be dismissed on the pleadings depends on whatthe pleadings say.’”
Marshall Naify Revocable Tr. v. UnitedStates
, 672 F.3d 620, 625 (9th Cir. 2012) (quoting
Weisbuchv. County of Los Angeles
, 119 F.3d 778, 783 n.1 (9th Cir.1997)). Because we thus must accept them as true, Plaintiffshave plausibly alleged that the COVID-19 vaccine does noteffectively “prevent the spread” of COVID-19. Thus,
Jacobson
does not apply, and so we vacate the districtcourt’s order of dismissal and remand.
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This case is not moot. And the district court wronglyapplied
Jacobson
to the substantive due process claim.Thus, we vacate the district court’s order and remand.
VACATED AND REMANDED.
R. NELSON, J., concurring:
I write separately to address another issue not at issue inthis appeal, but perhaps relevant as this case progresses onremand. Our intervening case,
Kohn v. State Bar ofCalifornia
, 87 F.4th 1021 (9th Cir. 2023) (en banc), raisesthe question whether the district court’s holding below thatthe Los Angeles Unified School District (LAUSD) is entitledto sovereign immunity should be revisited.“[A] federal court generally may not hear a suit brought by any person against a nonconsenting State.”
Munoz v.Super. Ct. of L.A. Cnty.
, 91 F.4th 977, 980 (9th Cir. 2024)(internal quotation marks omitted). “This prohibitionapplies when the state or the arm of a state is a defendant.”
Id.
(cleaned up). We recently clarified when a governmentagency is an “arm of the state.”
See Kohn
, 87 F.4th at 1026– 32. We examined the current test—the
Mitchell
factors— against Supreme Court precedent and overruled it.
Id.
at1027–30 (reassessing
Mitchell v. L.A. Cmty. Coll. Dist.
, 861F.2d 198, 201–02 (9th Cir. 1988)). We instead adopted anew, entity-based test.
Id.
at 1030.
Kohn
’s reasoning mayimpact claims that can be brought against LAUSD.The Supreme Court has never established a standard testfor determining whether an entity is an “arm of the state.”
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See
id.
at 1026–27. We developed the
Mitchell
factors outof a “grab bag” of Supreme Court and Ninth Circuit precedent.
Id.
at 1027. One of the cases the
Mitchell
factorsrelied on was the Supreme Court’s decision in
Edelman v. Jordan
, 415 U.S. 651 (1974).
Id.
Edelman
suggested that ifthe judgment would be paid by the State, the suit is barred.
See id.
at 1027 (citing
Edelman
, 415 U.S. at 663 (“Thus therule has evolved that a suit by private parties seeking toimpose a liability which must be paid from public funds inthe state treasury is barred by the Eleventh Amendment.”)).Since
Edelman
, however, the Court has held that solvency
and
state dignity are equally important, and what matters ishow the state and defendant relate to one another.
See id.
at1027–28;
see also id.
(“But, since
Edelman
and
Mitchell
, theSupreme Court has clarified that ‘[t]he EleventhAmendment does not exist solely in order to preven[t]federal-court judgments that must be paid out of a [s]tate’streasury.’” (quotations omitted) (itself quoting
SeminoleTribe of Fla. v. Florida
, 517 U.S. 44, 58 (1996)).The
Mitchell
test was applied inconsistently, and thuswas not predictable. The factors were weighted differently,and while this balancing afforded judicial discretion, “itallows lower courts in our Circuit to ‘twist’ the arms of thestate doctrine depending on the defendant.”
Id.
at 1029. Forexample, “[u]nder
Mitchell
, we [] placed the greatest weighton” who was financially responsible in assessing sovereignimmunity.
Id.
at 1027 (citing
Durning v. Citibank, N.A.
, 950F.2d 1419, 1424 (9th Cir. 1991)). This made little sense.
Seeid.
at 1027–30.
The second
Mitchell
factor—“whether the entity performs central government functions”—was also appliedinconsistently.
Id.
at 1029. At times, we have evaluated thisat the entity-level, and other times at the activity-level.
Id.
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But if the
Mitchell
test were entity-based, an entity eithershould be immune or not—it should not depend on what theentity is doing.
Id.
Recognizing this tension,
Kohn
overruled
Mitchell
.
Id.
at 1028 (“The
Mitchell
factors are . . . inconsistent withSupreme Court arm of the state doctrine.”). In its place, weadopted an “entity-based” test.
Id.
at 1030. This three-factortest evaluates “(1) the state’s intent as to the status, includingthe functions performed by the entity; (2) the state’s controlover the entity; and (3) the entity’s overall effects on the statetreasury.”
Id.
(citing
P.R. Ports Auth. v. Fed. Mar. Comm’n
,531 F.3d 868, 873 (D.C. Cir. 2008) (cleaned up)). Under it,“an entity either is or is not an arm of the [s]tate”—it is notcontext specific.
Id.
at 1031 (citing
P.R. Ports Auth.
, 531F.3d at 873).
We have held that California school districts havesovereign immunity, relying on
Mitchell
.
See, e.g.
,
Belangerv. Madera Unified Sch. Dist.
, 963 F.2d 248, 254 (9th Cir.1992);
Sato v. Orange Cnty. Dep’t of Educ.
, 861 F.3d 923,934 (9th Cir. 2017). That said, we have held that schooldistricts in other states are not.
The reasons for thisdiffering result are now suspect under
Kohn
. Given this, itmust be reassessed whether California school districts are an“arm of the state.”We first held that California school districts were an“arm of the state” in
Belanger
. We noted that some factorscut against this but reasoned that “Belanger [could not] prevail on the first and most important factor because a
1
See, e.g.
,
Holz v. Nenana City Pub. Sch. Dist.
, 347 F.3d 1176, 1184 (9thCir. 2003) (Alaska);
Savage v. Glendale Union High Sch., Dist. No. 205
,343 F.3d 1036, 1044 (9th Cir. 2003) (Arizona);
Eason v. Clark Cnty.Sch. Dist.
, 303 F.3d 1137, 1143 (9th Cir. 2002) (Nevada).
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judgment against the school district would be satisfied out ofstate funds.”
Belanger
, 963 F.2d at 251. We also stated that“under California law, the school district is a state agencythat performs central government functions.”
Id.
Thisanalysis thus hinged on the first and second, now defunct,
Mitchell
factors.
See id.
Belanger
’s analysis of the secondfactor also examined the
activity
that California schooldistricts performed—public schooling—and reasoned that because that was a “central governmental function,” theywere “arms of the state.”
Id.
The
Belanger
court wasunconcerned that California school districts “enjoy widediscretion and considerable autonomy” under this secondfactor.
See id.
This analysis is thus suspect under
Kohn
.We then doubled down on this holding in
Sato
. Between
Belanger
and
Sato
, California enacted AB 97, which“reformed education funding and governance in California.”
Sato
, 861 F.3d at 929. As a result, public education inCalifornia became more locally funded and educationalachievement more locally controlled—thus reducing theState’s involvement in both.
See id.
That said, we still heldthat because state and local education funds were “still‘hopelessly intertwined,’” the first, now disfavored,
Mitchell
factor still favored immunity.
Id.
at 932. For the second
Mitchell
factor, while we recognized that “AB 97 granteddistricts [] some measure of autonomy and discretion ingoal-setting,” “it did not delegate primary responsibility for providing public education.”
Id.
at 933. This determinationthus looked at the activity—providing public education— rather than the entity. That reasoning and this conclusion isnow suspect under
Kohn
.
Our new entity-based test in
Kohn
seems to conflict with(and likely overrule) our reasoning in
Belanger
and
Sato
.Because of this, the district court’s holding that LAUSD is
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an “arm of the state” (as well as our prior holdings in
Belanger
and
Sato
) may need to be revisited.
Cf.
Reilly
,2022 WL 5442479, at *3 (relying on
Mitchell
I agree that this case is not moot and that
Jacobson v. Massachusetts
, 197 U.S. 11 (1905), is not controlling underthe well-pleaded allegations of Plaintiffs’ complaint. Itherefore concur in the majority opinion. I write separatelyto emphasize a crucial point the district court overlooked.
The district court in this case explicitly held that
Jacobson
governs Plaintiffs’ substantive due process claimeven if one assumes the truthfulness of the complaint’sallegations that the Covid vaccines are not very effective at preventing infection and transmission and that their value is primarily in
reducing disease severity
for those recipients ofthe vaccine who thereafter contract Covid. As the majorityexplains,
Jacobson
did not involve a comparable claim andis not controlling authority with respect to it.In my view, the district court further erred by failing torealize that these allegations directly implicate a distinct andmore recent line of Supreme Court authority, in which the
2
If LAUSD does not have sovereign immunity, Plaintiffs may be able toamend to raise a monetary claim, which would be another reason thiscase is not moot.
Cf. Pennhurst State Sch. & Hosp. v. Halderman
, 465U.S. 89, 100 (1984);
see also
Jacobs v. Clark Cnty. Sch. Dist.
, 526 F.3d419, 425
–26 (9th Cir. 2008) (“[A] ‘live claim for [even] nominaldamages will prevent dismissal for mootness.’” (quoting
Bernhardt v.County of Los Angeles
, 279 F.3d 862, 872 (9th Cir. 2002))).
Fotos: Pixabay.
Fonte: https://www.infowars.com/posts/breaking-covid-mrna-jabs-are-not-vaccines-court-rules/
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Court has stated that “[t]he principle that a competent personhas a constitutionally protected liberty interest in refusingunwanted medical treatment may be inferred from [theCourt’s] prior decisions.”
Cruzan ex rel. Cruzan v. Director, Mo. Dep’t of Health
, 497 U.S. 261, 278–79 (1990) (citing,not only
Jacobson
, but a series of later “cases support[ing]the recognition of a general liberty interest in refusingmedical treatment”). In
Washington v. Glucksberg
, 521 U.S.702 (1997), the Court explained that
Cruzan
’s posited “‘rightof a competent individual to refuse medical treatment’” was“entirely consistent with this Nation’s history andconstitutional traditions,” in light of “the common-law rulethat forced medication was a battery, and the long legaltradition protecting the decision to refuse unwanted medicaltreatment.”
Id
. at 724–25 (citation omitted). Given thesestatements in
Glucksberg
, the right described there satisfiesthe history-based standards that the Court applies forrecognizing “fundamental rights that are not mentionedanywhere in the Constitution.”
Dobbs v. Jackson Women’s Health Org.
, 597 U.S. 215, 237–38 (2022). The SupremeCourt’s caselaw thus clarifies that compulsory treatment forthe health benefit of
the person treated
—as opposed tocompulsory treatment for the health benefit of
others
— implicates the fundamental right to refuse medical treatment.
Plaintiffs’ allegations here are sufficient to invoke thatfundamental right. Defendants note that the vaccinationmandate was imposed merely as a “condition ofemployment,” but that does not suffice to justify the districtcourt’s application of rational-basis scrutiny.
See
Lane v. Franks
, 573 U.S. 228, 236 (2014) (“[The] Court hascautioned time and again that public employers may notcondition employment on the relinquishment ofconstitutional rights.”).
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With these additional observations, I concur in themajority opinion.
HAWKINS, Circuit Judge, dissenting.
This case is over. We cannot grant the sole relief sought by the Plaintiffs, an injunction against enforcement of theschool district’s now rescinded COVID-19 vaccination policy (the “Policy”). Despite the absence of any ongoing policy, my friends in the Majority would hold that this actionremains justiciable under the voluntary cessation exceptionto mootness.
See FBI v. Fikre
, 601 U.S. 234, 241 (2024).
Indoing so, they ignore the practical realities surroundingLAUSD’s adoption and rescission of the Policy, whichdemonstrate that there is no reasonable expectation LAUSDwill reimpose the Policy in the future. Because there is nolonger any policy for our court to enjoin, I would, as ourcourt has done consistently in actions challenging rescindedearly pandemic policies, hold that this action is moot, vacatethe district court’s decision, and remand with instructions todismiss the action without prejudice.
See, e.g.
,
Brach v. Newsom
, 38 F.4th 6 (9th Cir. 2022) (en banc).I begin with a brief overview of the pertinent events toillustrate the context in which LAUSD adopted and thenrescinded the Policy. In early March 2020, the World HealthOrganization declared a global pandemic in response toCOVID-19, leading to the issuance of local, state, andfederal emergency declarations and orders. “GovernorGavin Newsom declared a state of emergency withinCalifornia, and issued Executive Order N-33-20, requiringCalifornians to ‘heed the current State public healthdirectives’ including the requirement ‘to stay home or at their
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place of residence.’”
Id.
at 9. Around March 16, 2020,LAUSD closed its facilities for in-person operations andimplemented a distance learning and remote work programthat lasted through most of the 2020–2021 school year.
In advance of the reopening of schools for in-personinstruction, California Educators for Medical Freedom—oneof the Plaintiffs in this action—and several other individualsfiled a complaint on March 17, 2021, seeking to enjoinLAUSD from implementing a policy that requiredemployees, without exception, to be vaccinated againstCOVID-19.
Cal. Educators for Med. Freedom v. Los Angeles Unified Sch. Dist.
, No. 21-cv-02388, 2021 WL1034618, Dkt. 1 (C.D. Cal. Mar. 17, 2021) (
CEMF
).
CEMF
complaint alleged, on information and belief, thatLAUSD had adopted such a policy,
id.
¶ 1, and attachedseveral documents in support, including a March 4, 2021memorandum to employees.
See id.
Ex. F. Thememorandum informed LAUSD employees that they wereeligible to receive COVID-19 vaccinations and providedinformation about registering for vaccinations through theDistrict’s vaccination program or submitting documentationof their vaccination if received through an outside program.
Id.
The memorandum did not state explicitly that employeeswere required to receive vaccinations or that employmentconsequences would follow if employees were notvaccinated.
Id.
The day after the
CEMF
plaintiffs filed
1
We may take judicial notice of filings and decisions in related courtactions.
See Reyn’s Pasta Bella, LLC v. Visa USA, Inc.
, 442 F.3d 741,746 n.6 (9th Cir. 2006).
2
CEMF also supported its complaint with a letter from the LAUSDemployees’ union.
CEMF
, No. 21-cv-02388, 2021 WL 1034618, Dkt.
28
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their complaint, LAUSD sent an updated interofficememorandum that clarified “vaccinations are not mandatoryat this time.” The
CEMF
plaintiffs acknowledged in anamended complaint that LAUSD was giving staff the optionto test or be vaccinated.LAUSD moved to dismiss the case on ripeness grounds because it had not yet implemented a vaccination policy, andthe district court granted the motion. The district court foundthat the case did not raise any voluntary cessation concerns because, “according to Plaintiffs’ allegations, Defendantsnever began the objectionable conduct in the first place.”The district court dismissed the action without prejudice onJuly 27, 2021.
The 2021–2022school year also marked the unrestricted reopening ofLAUSD schools for in-person instruction.
1, Ex. G. The letter indicated that the District’s plans to implement amandatory vaccination policy were in progress; the informationregarding those plans “may very well change;” discussions with theDistrict were “nowhere near done;” and no deadlines had been set givena variety of unknown variables, including the availability ofvaccinations.
Id.
3
LAUSD, Single-Track Instructional School Calendar 2021‒2022,https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/4/REV1.4.2022BoardAppvd_2021-2022InstructionalCal.pdf[“LAUSD2021–2022 Calendar”].
4
The emergency legislation allowing the California public school systemto move online expired on June 30, 2021, and on July 12, 2021, the Stateof California lifted “all restrictions on school reopening.”
Brach
, 38F.4th at 11, 13.
5
See
LAUSD 2021–2022 Calendar.
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days before students would be returning to the classrooms— LAUSD circulated a memorandum to staff announcing thePolicy and explaining that all non-exempt employees must be vaccinated against COVID-19. The LAUSD Board ofEducation (the “Board”) approved the policy at a subsequentmeeting in November 2021.Plaintiffs filed the underlying complaint and sought aninjunction barring enforcement of the Policy. LAUSDeventually moved for judgment on the pleadings. Thedistrict court granted the motion and entered judgment infavor of the Defendants. Plaintiffs then appealed.
We held oral argument on September 14, 2023,approximately four weeks after the start of LAUSD’s 2023– 2024 school year .
At oral argument, counsel for Plaintiffsinformed the court that, although the Policy remained ineffect as of that date, there were rumors LAUSD would berescinding the Policy. Consistent with those rumors, adetailed report proposing rescission of the Policy wassubmitted to the Board on the same day as oral argument.The proposal identified the many changes that had occurredsince LAUSD adopted the Policy in the fall of 2021 andexpressed the view that vaccines were no longer needed tokeep schools open for in-person learning. At its nextmeeting, held on September 26, 2023, the Board heardcomments from interested parties and voted to rescind thePolicy.
6
LAUSD, Instructional School Calendar 2023‒2024,https://www.lausd.org/site/default.aspx?PageType=3&ModuleInstanceID=67213&ViewID=C9E0416E-F0E7-4626-AA7B-C14D59F72F85&RenderLoc=0&FlexDataID=112212&PageID=17824&Comments=true.
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The Majority characterizes LAUSD’s conduct as anintentional manipulation of federal courts. But we generallyafford the government a presumption of good faith,
Brach
,38 F.4th at 13, and when viewed in context, there areobvious, non-litigation-related explanations for LAUSD’sactions surrounding the adoption and rescission of thePolicy. Far from the “about-face” described by the Majority,the
CEMF
pleadings and attached documents reflect thatLAUSD simply had not formalized or implemented avaccination policy at the time the plaintiffs filed theircomplaint in that litigation. Although implementation of thePolicy came on the heels of the
CEMF
lawsuit’s dismissal,it also coincided with the start of the new school year andLAUSD’s full return to in-person learning after theunprecedented school closures seventeen months earlier.Thus, I would not be so quick to deem the timing ofLAUSD’s development and adoption of the Policy aslitigation gamesmanship, and I would not rely on it to inferthe motive behind LAUSD’s rescission of the Policy.Instead, I believe there is sufficient evidence in the recordthat LAUSD rescinded the Policy in response todevelopments regarding COVID-19 and “not [as] atemporary move to sidestep litigation.”
Brach
, 38 F.3d at 13.
Next, and more importantly, the record shows thatLAUSD is not reasonably expected to reenact the Policy.
See Fikre
, 601 U.S. at 241. The burden to show thatchallenged conduct is not reasonably expected to recur is a“formidable” one indeed.
Id.
And governmental defendantsmust bear that burden just as any other private party would.
Id.
Here, LAUSD has carried that burden.Again, context matters. LAUSD adopted the Policy inresponse to the COVID-19 pandemic and the return to fullin-person instruction after the extended school closures
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occasioned by the onset of the pandemic. Those are not“routine occurrence[s] that we can assume [are] reasonablylikely to reoccur.”
McDonald v. Lawson
, 94 F.4th 864, 869(9th Cir. 2024). It then rescinded the Policy after several keydevelopments in 2023, including the end of local, state, andfederal emergency COVID-19 orders; the World HealthOrganization’s determination that COVID-19 no longerconstitutes a public health emergency of internationalconcerns; and the determination that COVID-19 had enteredan endemic phase. These legal and scientific developmentsand LAUSD’s reliance on them suggest that LAUSD’srecission of the Policy is “entrenched” and not “easilyabandoned.”
Brach
, 38 F.4th at 13. LAUSD also hasaverred that, absent a very unlikely return to the onset of theCOVID-19 pandemic, it will not reinstate the Policy.As we have said before, “circumstances change, andwhen circumstances change, it is not reasonable to expectsimple repetition of past actions.”
Wallingford v. Bonta
, 82F.4th 797, 804 (9th Cir. 2023). The bottom line, here, is thatthe circumstances have changed. And neither thespeculative possibility of a future pandemic nor LAUSD’s power to adopt another vaccination policy save this case.
See Brach
, 38 F.4th at 9.
7
I also disagree with the approach to avoiding mootness suggested in theconcurrence. Although we may consider subsequent events whenevaluating mootness, we typically do not allow plaintiffs to change thenature of the remedies sought in their complaint when mootnessconcerns arise.
Seven Words LLC v. Network Solutions
, 260 F.3d 1089,1097–98 (9th Cir. 2001). If our court would not allow the Plaintiffs tosave this case with a “late-in-the-day” request for damages,
Bain v. Cal.Teachers Ass’n
, 891 F.3d 1206, 1212 (9th Cir. 2018), the court certainlyshould refrain from sua sponte suggesting a novel legal theory in support
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Unsurprisingly, our court has found that other challengesto early COVID-19 policies became moot upon therescission or expiration of those policies, and in doing so, werejected arguments that the voluntary cessation exception tomootness applied, particularly in light of the uniquecircumstances that gave rise to the policies in the first place.
See, e.g.
,
id.
at 12–14;
McDonald
, 94 F.4th at 869;
Seaplane Adventures, LLC v. County of Marin
, 71 F.4th 724, 732–33(9th Cir. 2023);
Donovan v. Vance
, 70 F.4th 1167, 1172 &n.5 (9th Cir. 2023).
In a recent trio of cases, the Supreme Court vacated asmoot lower court judgments concerning COVID-19vaccination mandates following the rescission of thosemandates.
Payne v. Biden
, 144 S. Ct. 480 (2023);
Biden v. Feds for Ded. Freedom
, 144 S. Ct. 480, 480–81 (2023);
Kendall v. Doster
, 144 S. Ct. 481 (2023). Relying on
Payne
,
Feds for Medical Freedom
, and
Doster
, we determined thata challenge to the executive order mandating COVID-19vaccinations for federal contractors became moot uponrescission of that executive order; we vacated our court’searlier opinion, dismissed the appeal as moot, and remandedfor the district court to vacate portions of its order regardingthe moot claims.
Mayes v. Biden
, 89 F.4th 1186, 1188 (9thCir. 2023). The case before us now warrants the same result.“Sometimes, events in the world overtake those in thecourtroom, and a complaining party manages to secureoutside of litigation all the relief he might have won in it.”
Fikre
, 601 U.S. at 240. That is the case here. Because thereis no longer any policy for the court to enjoin or declareunlawful, I would hold that the case is moot, vacate the
of a remedy not sought in the complaint as a means to reach the meritsof an otherwise moot case.
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district court’s decision, and remand for the district court todismiss the case as moot.
See United States v. Munsingwear, Inc.
, 340 U.S. 36, 39 (1950). I dissent
