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Ninth Circuit:
LAUSD Is Seeking to Play Games With Federal Courts
Majority Says School District Has Turned Mandatory-COVID Inoculation Policy off, Then on Again; Won’t Declare Issue Moot Though Policy Has Been Rescinded, Drawing Dissent; Suit Revived in Light of Adequate Pleading
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday ordered reinstatement of an action challenging a now-rescinded policy of a local governmental entity that employees must receive COVID-19 inoculations or be fired, with the majority proclaiming that the matter is not moot because the defendant has a history of turning its policy off, temporarily, in order to skirt litigation.
Judge Ryan D. Nelson declared in the majority opinion that a “pattern” by the Los Angeles Unified School District (“LAUSD”) “of withdrawing and then reinstating its vaccination policies is enough to keep this case alive.”
Judge Daniel P. Collins joined. Nelson and Collins each added a concurring opinion.
Senior Judge Michael Daly Hawkins dissented, saying:
“This case is over.”
1905 Decision
District Court Judge Dale S. Fischer of the Central District of California had dismissed the case with prejudice based on the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts. It was held in that opinion that states could enforce compulsory vaccination laws in order “to safeguard the public health and the public safety.”
That case is inapposite, Nelson said, in light of allegations of the complaint—taken as true in assessing its sufficiency—that the COVID-19 vaccination merely alleviates symptoms of a person infected with the virus but is ineffective in preventing its spread.
He said that Fischer erred :in holding that Jacobson extends beyond its public health rationale—government’s power to mandate prophylactic measures aimed at preventing the recipient from spreading disease to others—to also govern ‘forced medical treatment’ for the recipient’s benefit.”
It’s to no avail, he said, for LAUSD to argue “that Plaintiffs’ allegations are wrong” or “by providing facts that do not contradict Plaintiffs’ allegations.”
The jurist remarked:
“We note the preliminary nature of our holding. We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true.”
Game-Playing Alleged
Ryan noted that 12 days after oral argument before the Ninth Circuit—which occurred on Sept. 14, 2023—LAUSD rescinded its policy. However, he noted, the school district once before rescinded the policy, after the plaintiffs brought suit, but reinstated it after the action was dismissed based on mootness.
“Litigants who have already demonstrated their willingness to tactically manipulate the federal courts in this way should not be given any benefit of the doubt. LAUSD’s about-face occurred only after vigorous questioning at argument in this court, which suggests that it was motivated, at least in part, by litigation tactics,” he commented, adding:
“[T]he record at least supports a strong inference that LAUSD waited to see how the oral argument in this court proceeded before determining whether to maintain the Policy or to go forward with a pre-prepared repeal option. LAUSD appears to have twice sought to manipulate the federal courts to avoid an adverse ruling on this issue. Moreover, the Board expressly reserved the option to again consider imposing a vaccine mandate. This confirms that LAUSD has not carried its heavy burden to show that there is no reasonable possibility that it will again revert to imposing a similar policy.”
Concurring Opinion
Fischer’s alternate ground in dismissing the action was that LAUSD enjoys sovereign immunity. In his concurring opinion, Nelson said that past cases have recognized that immunity, but opined that the question should be reexamined in light if the Ninth Circuit’s en banc opinion last year in Kohn v. State Bar of California. There it was held that in determining whether an entity is an arm of the state, entitled to Eleventh Amendment immunity, the best test “is not a multi-factor checklist involving potentially irrelevant factors but an analysis that drills down on whether the state ‘structured’ the entity to enjoy immunity from suit.”
Nelson said the “new entity-based test in Kohn seems to conflict with (and likely overrule)” cases giving rise to the view that LAUSD enjoys immunity, observing that “the district court’s holding that LAUSD is an ‘arm of the state’…may need to be revisited.”
Collins, in a concurring opinion, said he writes “separately to emphasize a crucial point the district court overlooked” which is that the “allegations here are sufficient to invoke” the “fundamental right” against forced medication.”
Hawkins’s Dissent
Hawkins said in a dissenting opinion:
“We cannot grant the sole relief sought by the Plaintiffs, an injunction against enforcement of the school district’s now rescinded COVID-19 vaccination policy….Despite the absence of any ongoing policy, my friends in the Majority would hold that this action remains justiciable under the voluntary cessation exception to mootness….In doing so, they ignore the practical realities surrounding LAUSD’s adoption and rescission of the Policy, which demonstrate that there is no reasonable expectation LAUSD will reimpose the Policy in the future.”
He indicated that he would, “as our court has done consistently in actions challenging rescinded early pandemic policies” declare the matter moot and instruct the District Court to dismiss the action without prejudice to it being refiled.
The case is Health Freedom Defense Fund, Inc. v. Carvalho, 22-55908.
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