Victory, The Ninth District Of Appeals Remands Covid-19 Vaccine Lawsuit Back To Lower Court

Because we thus must accept them as true, Plaintiffs have plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does not apply.

Another victory at the Court of Appeals level for the medical freedom community resulted due to error of the Circuit Court.

This case is about Los Angeles United School District (LAUSD) COVID-19 vaccination policy and whether or not, the vaccine definition of immunity applies the novel mRNA Covid-19 vaccine.

LAUSD issued its first policy on March 4, 2021. That policy was challenged two weeks later in a lawsuit filed by Plaintiff California Educators for Medical Freedom (CEMF) and several individual plaintiffs. According to CEMF’s complaint, LAUSD’s policy required employees to get the COVID-19 vaccine, no exceptions on March 4, 2021. The policy added that “District employees may either participate in the District’s COVID-19 vaccination program or provide vaccination documentation in the form of an official Vaccination Record certified by a medical professional.”. The employees were required to provide proof of vaccination to the school district with instructions on on how to “submit proof of vaccination from an external medical provider through the LAUSD Daily Pass” website but the memorandum provided no options rather than the mandatory Covid-19 vaccination.

The very next day after CEMF filed suit, LAUSD reversed course and issued a “clarifying memorandum” that gave employees an option to test for COVID-19 if they did not want to get the vaccine. Relying on this clarifying memorandum, which LAUSD claimed did not impose “mandatory vaccinations,” LAUSD moved to dismiss CEMF’s suit because, among other things, it was “moot and/or premature.” LAUSD disputed whether CEMF had adequately pleaded that exemptions would not be allowed. Instead, LAUSD argued that, considering the March 18 “clarifying memorandum” allowing a testing alternative—issued after the lawsuit was filed—the case was moot or unripe. In legal terms, the ripeness doctrine requires the courts to decide on a subject matter that has actually happened not mere possibilities.

CEMF argued 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 mootness under the voluntary cessation doctrine. CEMF’s position was bolstered by its citation in the complaint to a letter from the LAUSD employees’ union, which stated that “[a]ll District employees will be required to be vaccinated,” and “[n]o exceptions have been made.” The Supreme Court has held that a party’s voluntary cessation of an unlawful practice will usually not moot its opponent’s challenge to that practice. Thus, a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued.

On July 27, 2021, the district court dismissed the complaint, holding that CEMF’s claims were not ripe. Noting that CEMF’s amended complaint had cited the March 18 memorandum, the district court held that, considering the then-existing testing option, “there is no threat of future injury because LAUSD explicitly stated it is not requiring vaccines.” The court held that it was “completely speculative” whether “LAUSD will begin to require vaccination of all employees at some point in the future and will not offer exemptions” for the plaintiffs.

Having obtained dismissal of CEMF’s suit on these grounds, LAUSD reversed course again two weeks later. Its new policy (the Policy), adopted on August 13, 2021, expressly eliminated the testing option on which the district court’s July 27 dismissal had been based. CEMF sued again, this time joined by Health Freedom Defense Fund, Inc. and new individual plaintiffs (collectively, Plaintiffs). They named as defendants LAUSD employees and Board members in their official capacities.

The Plaintiffs challenged the Policy as violating the Fourteenth Amendment, among other claims. Plaintiffs claim that the Policy interferes with their fundamental right to refuse medical treatment. Their complaint’s crux is that the COVID-19 “vaccine” is not a vaccine. “Traditional” vaccines, Plaintiffs claim, should prevent transmission or provide immunity to those who get them. But the COVID-19 vaccine does neither. At best Plaintiffs suggest, it mitigates symptoms for someone who has gotten it and then gets COVID-19. But this makes it a medical treatment, not a vaccine.

Plaintiffs’ complaint supports these assertions with data and statements from the Centers for Disease Control and Prevention (CDC). For example, Plaintiffs claim that the CDC changed the definition of “vaccine” in September 2021, striking the word “immunity.” Thus, they argue, the CDC conceded that the COVID-19 vaccine is not a “traditional vaccine.” They also cite CDC statements that say the vaccine does not prevent transmission, and that natural immunity is superior to the vaccine.

Then, applying a rational basis review, the district court held that the Policy does not implicate any fundamental right, and that LAUSD had a legitimate government purpose in requiring the COVID-19 vaccination. The district court held that the COVID-19 vaccine’s reduction in symptoms and prevention of severe disease and death in recipients survived rational basis review, even if it did not prevent transmission or contraction.

Plaintiffs appealed the district court’s order. In April 2023, LAUSD filed its answering brief. It vigorously defended its vaccine mandate and did not raise any suggestion that it might be revoked. LAUSD’s counsel was asked at oral argument about the contrast with those cases and whether LAUSD could maintain the Policy indefinitely. LAUSD’s counsel responded that the Policy was properly still in place because “there are Covid spikes right now.” Counsel stated that LAUSD was “very concerned about maintaining the health of [its] staff” and believed that COVID vaccines should continue to be required “until it is absolutely established that the vaccines have no effect.”

During the court hearing in September 2023, that same day, LAUSD’s Superintendent submitted to the LAUSD Board (the Board) of Education a proposal to repeal the mandate. Twelve days later, (the Board) voted to rescind the Policy by a six to one vote, with one abstention.

LAUSD then asked us to dismiss the appeal, claiming that the case is now moot. Plaintiffs objected, arguing that LAUSD withdrew the Policy because they feared an adverse ruling.

The district court held, applying rational basis review under Jacobson, that the Policy satisfied a legitimate government purpose. But the district court’s analysis diverges from Jacobson; thus, we vacate the district court’s opinion and remand.

The district court relied on Jacobson to hold that the Policy was rooted in a legitimate government interest. Reilly, 2022 WL 5442479, at *5−6. But Jacobson does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme Court balanced an individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s interest in preventing disease. The Court explained that the “principle of vaccination” is “to prevent the spread of smallpox.” Because of this, the Court concluded that the State’s interest superseded Jacobson’s liberty interest, and the vaccine requirement was constitutional.

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent transmission, meaning that it must “prevent the spread” of COVID-19. Plaintiffs allege that the vaccine does not effectively prevent spread, but only mitigates symptoms for the recipient. Putting that aside, the district court held that, even if it is true that the vaccine does not “prevent the spread,” Jacobson still dictates that the vaccine mandate challenged here is subject to, and survives, the rational basis test.

This misapplies Jacobson. Jacobson held that mandatory vaccinations were rationally related to “preventing the spread” of smallpox. 197 U.S. at 30; see also 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 Court essentially applied rational basis review to Henning Jacobson’s challenge . . .”).

Jacobson, however, did not involve a claim in which the compelled vaccine was “designed to reduce symptoms in the infected vaccine recipient rather than to prevent transmission and infection.” The district court thus 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.

At this stage, the court must accept Plaintiffs’ allegations that the vaccine does not prevent the spread of COVID-19 as true. spread of COVID-19 as true. And, because of this, Jacobson does not apply.

The Appeals Court “We do not prejudge whether, on a more developed factual record, Plaintiffs’ allegations will prove true. But “[w]hether an action ‘can be dismissed on the pleadings depends on what the pleadings say.’” Because we thus must accept them as true, Plaintiffs have plausibly alleged that the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does not apply, and so we vacate the district court’s order of dismissal and remand.

This case is not moot. And the district court wrongly applied Jacobson to the substantive due process claim. Thus, we vacate the district court’s order and remand.

VACATED AND REMANDED.

What does this mean, and what implications will it have for the Plaintiffs case? The word ‘remand” means to “return the case.” So, when a court “remands” a case, it means they are returning it to the lower court, which is typically to the federal court from where the case first arrived. There will be another opportunity to review the case on merit based on the appeals court dismissing LAUSD erroneous argument based on the Jacobson case.

Furthermore, this will provide an opportunity to settle whether the CDC can arbitrarily change the definition of a vaccine and eliminating the original purpose of a vaccine which is to provide immunity. Hopefully. this will clarify for the future whether any government agency or public employer can force a medical prophylactic measure on its subjects.

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https://cdn.ca9.uscourts.gov/datastore/opinions/2024/06/07/22-55908.pdf