June 2024

The Supreme Court denied the plaintiff’s petition for certiorari review of the Second Circuit’s decision in We The Patriots USA, Inc., et al. v. Connecticut Office of Early Childhood Development, et al. In that case, We The Patriots USA, Inc., contended that the Connecticut Office of Early Childhood Development violated their First Amendment rights by removing the religious exemption from school vaccination requirements. Both the District Court and United States Circuit Court of Appeals for the Second Circuit rejected the argument and the Supreme Court declined to hear the case. For a detailed discussion of the Second Circuit decision, see our August 11, 2023 Spotlight.  

Tuesday, June 18: The United States Court of Appeals for the Ninth Circuit reversed the District Court for the Eastern District of Washington’s decision to grant the Defendants’ motion for judgment on the pleadings and remanded the case back to the District Court to give the Plaintiffs leave to amend in Bacon v. Woodward. Plaintiffs, a group of firefighters employed by the City of Spokane, Washington (the “City”), contended that, in applying State Governor Inslee’s Proclamation requiring state employees to be fully vaccinated against the COVID-19 virus, the City violated their Free Exercise rights under the First Amendment to the Constitution. Plaintiffs requested religious exemptions which the City denied.

The City determined that firefighters fell within the definition of “Health Care Provider” in the Governor’s Proclamation because the City required all firefighters to be certified Emergency Medical Technicians or paramedics. The City established a mechanism to evaluate exemption requests and to determine whether accommodating unvaccinated firefighters would impose undue hardship. After the City determined that it could not accommodate unvaccinated firefighters, the City held hearings to give them the opportunity to be heard. But the City was not persuaded to change its position.

When the plaintiff firefighters refused to vaccinate themselves, the City fired them and replaced them with firefighters from neighboring fire departments, some of which, did not categorically exclude firefighters from receiving religious accommodations to the vaccination mandate. The District Court found that the City’s application of the Proclamation was neutral and generally applicable in that it applied to a specific job sector that “came into regular contact with vulnerable segments of the public, particularly in emergency situations and whose employees work in close contact with their peers and other healthcare professionals in other facilities.” The District Court concluded that the “City’s vaccination requirement survives both strict scrutiny and rational basis” review. 

The Ninth Circuit, in its review of the case, first addressed whether the case had become moot upon the Governor’s recission of the vaccine mandate. The Ninth Circuit found that the Plaintiffs still had live claims. First, the Court found that they had “plausibly pled” a state claim for punitive damages based on the “callous disregard” for their Free Exercise rights, despite that the City had held hearings to hear and consider the firefighters’ position. 

The Court also found that the firefighter’s request for injunctive relief remained live. When the firefighters filed their lawsuit, they were still employed by the City. Their request for injunction relief was for an order that they were exempt from the vaccine mandate. But, since they were fired during the pendency of the lawsuit, the Court determined that their request for injunctive relief should be considered a request to restore the parties to the status quo ante (the position the parties were in before the events giving rise to the lawsuit occurred). A return to status quo ante would mean reinstatement for the firefighters, and a request for reinstatement constitutes prospective relief, which makes it a live, not moot, claim. 

Addressing the merits, the Ninth Circuit found that the firefighters had “plausibly pled” that the City’s implementation of Governor’s Proclamation was not “generally applicable.” The route by which the Ninth Circuit arrived at this determination was circuitous. By hiring firefighters from neighboring fire departments that granted religious exemptions, the City created the secular exemption of “being a member of a neighboring department.” The City then held requests for religious exemptions to a higher standard than the secular “being from a neighboring department” exemption. As the dissent noted, the Defendants did not claim that any replacement firefighters were unvaccinated, only that it was predictable that there would be, given that some neighboring fire departments did accommodate religious exemptions for firefighters. 

The dissent also disagreed with the majority that the District Court abused its discretion by declining to grant the Plaintiffs leave to amend their complaint. The dissent stated that the “good cause” standard in Rule 16(b) should apply because the Plaintiffs did not request leave to amend within the deadline set by the District Court’s scheduling order. Further, their late request for leave to amend was not accompanied by any explanation for missing the deadline or support for good cause why they should be granted leave.

Friday, June 21: The United States Court of Appeals for the Fifth Circuit described their decision in Braidwood Management v. Becerra as a “mixed bag.” At issue was the Affordable Care Act’s (“ACA”) requirement that preventative services be covered by private insurance without cost sharing. The ACA designated three agencies to determine the specific preventative care measures that should be included within the terms of the ACA. The statute defined four categories of preventive services that were required to be covered: (1) “evidence based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations for the United States Preventive Services Task Force (Task Force)” (2) “immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention (ACIP) with respect to the individual involved”; and (3) preventive services for women, children, adolescents, and infants recommended by Health Resources and Services Administration (HRSA).These three regulatory entities collaboratively issued recommendations and guidelines for the designated preventive care services. 

The Plaintiffs in this case, four individuals and two businesses, objected to being required to provide insurance coverage for preventative health care that they claimed made them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” They contended that the rulings and guidelines promulgated by these three regulatory entities were unconstitutional because their members were principal officers that had not been properly nominated by the President and approved by the Senate in Violation of Article II of the Constitution. The District Court agreed with the Plaintiffs and issued a universal injunction and vacatur of all agency actions taken to enforce the preventive care coverage mandate.  

The Fifth Circuit noted that the “primary point of contention between the parties. . . [was] the constitutionality of the Task Force.” The Fifth Circuit determined that the Task Force members were principal officers under Article II, making their actions unconstitutional. However, the Fifth Circuit held that the injunctive relief granted by the District Court only applied to the actions taken by the Task Force, and reversed the injunction against ACIP and HRSA, because their members were inferior officers and not subject to Presidential appointment and approval by the Senate.

The Fifth Circuit limited its order enjoining the Defendants from enforcing preventive-care mandates set by the Task Force to the Plaintiffs. However, as a practical matter, because the Fifth Circuit determined that the Task Force’s actions were unconstitutional, it is likely that health plans operating inside the jurisdiction of the Fifth Circuit will not provide the mandated preventive care. The Task Force coverage requirements for most Americans remain in place, at least for the time being.  

Monday, June 3: The United States Court of Appeals for the Fifth Circuit in Ass'n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med., upheld the District Court’s dismissal of the Association of American Physicians and Surgeons Educational Foundation’s (AAPS) First Amendment and antitrust claims against the U.S. Department of Homeland Security (Department) but modified the order to be without prejudice. In addition, the Fifth Circuit reversed the District Court’s decision to dismiss the AAPS’s Complaint against the board members of a group of medical specialty certifying organizations, (“Board Defendants”), finding that the AAPS had standing to assert a First Amendment claim as “hearers” of protected speech. 

The AAPS’s claims against the Board Defendants arose from the Board Defendants expressed intent to strip the certifications of physicians who spread disinformation relating to COVID-19 mitigation measures and abortion procedures. AAPS contended that this misinformation was simply criticism, and that the Board Defendants had “conspired” with the Biden Administration to label such criticisms “disinformation, misinformation and malinformation.” The AAPS did not name, in its complaint, any speaker whose speech had been chilled. Rather, the Fifth Circuit found that AAPS had pleaded a “right to hear” potential speech that was sufficient to state a claim under the First Amendment. According to the Fifth Circuit, the AAPS’s failure to identify a “willing speaker” in its complaint did not warrant dismissal before the AAPS had a chance to engage in discovery. The District Court below had not reached the question of whether the Board Defendants’ actions could be considered state action under the 14th Amendment. The Fifth Circuit declined to consider the issue, remanding it to the District Court instead. 

With respect to the AAPS’s antitrust claims against the Board Defendants, the Fifth Circuit read Galveston Division’s Local Rule 6 to preclude plaintiffs from freely amending their complaint, in contradiction to the spirit of the Federal Rules of Civil Procedure. Local Rule 6 requires that the parties confer prior to filing a motion to dismiss and it permits either party to amend their pleadings before filing the motion. However, it prohibits either party from amending their pleadings after the motion is filed and while a decision on the motion is pending. Because the District Court dismissed the AAPS’s complaint with prejudice, the Fifth Circuit determined that Local Rule 6 gave the plaintiff no opportunity to amend their complaint. On that basis, the Fifth Circuit modified the District Court’s decision to dismiss the antitrust claims to be without prejudice to allow the AAPS to amend its complaint. 

The Fifth Circuit upheld the District Court’s decision to dismiss the AAPS’s claims against the Department as moot. The Department had dissolved the Disinformation Governance Board which the AAPS alleged was responsible for the alleged government censorship and had not sufficiently pleaded the voluntary cessation exception to the mootness doctrine. However, the Fifth Circuit modified the dismissal to be without prejudice, explaining that Local Rule 6 improperly prohibited AAPS from amending its complaint. 

Wednesday, June 12: The Federal District court for the District of Minnesota granted in part and denied in part Defendant’s motion to dismiss Plaintiff Michael Larson’s religious-discrimination, substantive and procedural due process, equal protection, and breach of contract claims in Larson v. Walz et al. The State of Minnesota enacted a policy requiring that some employees be fully vaccinated against COVID-19 or agree to occasional testing. Plaintiff submitted a religious accommodation request to his employer, the Minnesota State College Southeast (MSC). In response, MSC asked Plaintiff to propose a set of possible accommodations. The Plaintiff provided MSC with 3 proposed accommodations. MSC rejected the proposed accommodations deeming them unreasonable and then terminated the Plaintiff’s employment.   

The Plaintiff filed suit against MSC. Count I of the Complaint alleged religious discrimination against MSC for refusing to grant his accommodation. MSC moved to dismiss. The Court held that the Plaintiff had sufficiently plead his religious objections via his connection to the Roman Catholic faith. However, the Court dismissed all Defendants except MSC as MSC was the only proper defendant to the Title VII claim. 

Counts II-VI include claims for violation of substantive due process rights under Fourteenth Amendment, violation of procedural due process under the Fourteenth Amendment, violation of the Equal Protection Clause of the United States Constitution, a claim for wrongful termination, and a claim for breach of contract. Plaintiff argued that Counts II-IV fell within the Ex Parte Young exception to Eleventh Amendment sovereign immunity, because he was also seeking a prospective, declaratory judgment, even if he was precluded from recovering monetary damages for past wrongs. The Court dismissed Counts II, III, IV, V, and VI of the Amended Complaint on the grounds that the Eleventh Amendment forbids suits in federal court against a state or state agency (such as MSC) for “any kind of relief.”  

Tuesday, June 7th:  In Health Freedom Defense, Inc. v. Alberto Carvalho, the Ninth Circuit of Court of Appeals vacated a decision by the United States District Court for the Central District of California dismissing plaintiffs’ complaint alleging that the Los Angeles United School District’s (LAUSD) vaccine mandate violated their fundamental right to refuse medical treatment. The District Court had granted LAUSD’s motion for judgment on the pleadings because the case had become moot after the LAUSD rescinded its vaccine mandate. The District Court also ruled on the merits, finding that the law did not recognize a fundamental right to refuse medical treatment. Applying a rational review standard, the District Court held that the LAUSD had a legitimate government purpose in requiring COVID-19 vaccination. 

On appeal, the 9th Circuit Court of Appeals found that because the LAUSD had “reversed course several times” with respect to its vaccination policies, that the voluntary cessation exception to the mootness doctrine applied. The Court then addressed the merits of the plaintiffs’ pleadings to determine if they stated a viable legal claim. The core of the plaintiffs’ argument was that the COVID-19 vaccine only ameliorated symptoms in recipients of the vaccine and did not stop the spread of disease to other people. As such, the vaccine was not really a vaccine, but a medical treatment. Plaintiffs claimed to have a fundamental right to refuse medical treatment, and that the vaccine mandate impinged on that fundamental right. 

The Court noted that on a motion for judgment on the pleadings, the Court must assume all factual allegations in the Complaint are true, and then decide whether those facts, if true, would support the relief requested. Thus, the Court proceeded as though misinformation about the COVID-19 vaccine, i.e., that it does not help prevent the spread of disease, was true. The Court then determined that Jacobson v. Massachusetts, 197 U.S. 11 (1905) did not apply in this case, because Jacobson only applied to cases involving vaccines that prevent the spread of disease, and that the District Court erred in applying Jacobson to the plaintiffs’ substantive due process claims.i The Court did not say that the District Court applied the wrong standard of review or misstated the governmental purpose. It simply said that Jacobson was not the correct precedent for the decision and relying on it was a reversible error. 

The dissent stated what the majority opinion merely implied. The dissent called for the 9th Circuit to explicitly recognize a fundamental right to refuse medical treatment that is protected by the due process clause of the 14th Amendment.

May 2024

Tuesday, May 16th: In Neiman v. Borough of Wyomissing, the United States District Court for the Eastern District of Pennsylvania dismissed Plaintiff’s various constitutional rights claims that he brought against two police officers acting in their official capacities as well as the two municipalities that employed them. The case arose when Klint Neiman, the Plaintiff, violated the Wyomissing Area School District’s (WASD) face-mask policy and refused to leave school property on several occasions when asked to do so, claiming that he had a medical exemption, despite that the WASD policy did not allow any exemptions. School officials called local police to remove Neiman from school property. Police briefly detained Neiman to conduct an investigation into the school’s official’s claim that Neiman was trespassing. Neiman was eventually charged with defiant trespass. Neiman sued under 42 U.S.C. §1983 alleging violations of his rights under the First, Fourth, and Fourteenth Amendment. The Court determined that Neiman was only briefly detained by the police officers and the detention was reasonable as there was probable cause that Neiman was committing the crime of defiant trespass. The Court dismissed the Fourteenth Amendment claims because Neiman received all procedural due process due to him when he received the notice of the charges in a timely fashion and was granted an opportunity to be heard. Lastly, The Court dismissed Neiman’s First Amendment claims. The Court determined that Neiman had not produced evidence that his detention prevented him from expressive activity that was protected by the First Amendment, “rather, the allegations show he was arrested or detained for trespassing on school property.” Further, even if Neiman had been incidentally prevented from speaking, he would have been required to establish a lack of probable cause for his detention, which he could not do.

 The Court dismissed Neiman’s claims against the two police officers because Neiman had already sued the Boroughs that employed them and a lawsuit against public officers in their official positions is basically a suit against the “public entity.”

Sunday, May 21st: The United States District Court for the Southern District of Illinois granted The City of Carbondale’s motion for summary judgment in Harris v. City of Carbondale. Plaintiff Shane Harris was a dispatcher for the City of Carbondale from 2015 until December 2021. In response to the COVID-19 pandemic, the Carbondale City Council established a city-wide vaccination policy. This vaccination policy required all employees to receive vaccinations against the virus. However, it also included a medical exemption “based upon an [ADA]-recognized disability that prevents the employee from receiving the COVID-19 vaccine.” The policy required that the employee provide sufficient reasoning from a medicalco provider to satisfy the exemption requirements. Employees who did not follow this policy were placed on unpaid administrative leave for up to 80 hours or until the employee complied with the policy. Harris’s primary care physician, Dr. Eric Graham, wrote a letter on behalf of Harris in support of his request for a medical exemption. The City notified Harris that the request was insufficient because the letter did not reference one of the known contraindications to receiving the Covid vaccine. On November 22, 2021, the City alerted Harris of his non-compliance with the vaccine policy and placed him on administrative leave for up to two weeks. On December 8, 2021, the City sent Harris a Notice of Termination. The Court ruled for summary judgment in favor of the City because there was nothing in the record supporting Harris’ claim that his condition is contraindicated with the vaccine and Harris received more than adequate pre-termination notice.

Tuesday May 7th: The Tenth Circuit Court of Appeals overturned a lower court and granted a preliminary injunction blocking the University of Colorado’s COVID-19 vaccine mandate religious exemption policy in Doe v. Board of Regents of University of Colorado. The plaintiffs, former employees and students at the University of Colorado Anschutz Campus, alleged that the university’s policy violated their First Amendment rights because it only allowed exemptions for individuals who could prove their religious beliefs were based on religious teachings that prohibit all vaccines. Campus administrators explained this policy by stating that it was “‘morally acceptable’ for Roman Catholics to take vaccines against COVID-19” but that Christian Scientists and Jehovah’s Witnesses would qualify for an exemption. Administrators also refused exemptions for applicants who professed Buddhist, Eastern Orthodox, Evangelical, and non-denominational Protestant beliefs, explaining that because these religions did not prohibit all vaccinations, plaintiffs’ beliefs were personal and not religious.

 The Tenth Circuit found these policies to be categorically unconstitutional violations of the Establishment and Free Exercise clauses of the First Amendment, as well as having an apparent and obvious animus toward religion. Thus, the court held that the plaintiffs had shown a significant enough likelihood of success on the merits to grant a preliminary injunction. The Court also rejected the Administration’s claims of mootness for most of the plaintiffs because although the Administration later changed its policies toward religious exemptions, plaintiffs who had not been re-evaluated for rehire or back pay under those new policies still had viable claims.

April 2024

Thursday April 25th: The Maine Supreme Court upheld the dismissal of a challenge to the state’s COVID-19 vaccine mandate for state emergency medical service employees in Calnan v. Hurley. The plaintiffs argued that Maine’s Emergency Medical Services (EMS) agency lacked the statutory authority to issue a COVID-19 and influenza vaccine mandate. In addition, even if the agency possessed statutory authority, it violated procedural requirements for issuing the vaccine mandate.

 The Maine Supreme Court affirmed the lower court decision, stating that the Maine EMS enabling statute contained “a broad grant of authority to the EMS Board to promulgate rules related to the EMS program” which was sufficient to set immunization requirements for workers to protect patients. Plaintiffs had also argued that the rulemaking process was subject to a more stringent set of procedures applicable to “major substantive rules,” as opposed to the less stringent requirements for “routine technical rules.” However, the statute setting forth these two categories of rulemaking only applied to rules authorized for adoption after January 1, 1996. Because the rulemaking authority for the EMS Board was enacted before 1996, the court determined that the “major substantive rules” standard did not apply. The procedure that the EMS Board followed met the procedural requirements that did apply.

Friday April 19th: The federal district court for the Southern District of New York denied a preliminary injunction seeking to halt enforcement of New York’s restriction on the sale of dietary aids and weight loss supplements to persons over the age of 18. In Council for Responsible Nutrition v. James, the plaintiffs, a consortium of dietary supplement companies, argued that the restriction infringed their First Amendment commercial Free Speech rights. However, the court held that the plaintiffs had not met the burden of showing a likelihood of success on the merits because a categorical ban on sale of weight loss supplements to those under 18 fell squarely within the state’s traditional police powers to promote the public health and did not implicate First Amendment Free Speech protections.

Thursday April 25th: The Second Circuit Court of Appeals upheld in part and overturned in part a lower court’s dismissal of a challenge to a New York school district’s mask mandate for students during the COVID-19 pandemic. In Doe v. Franklin Square Union Free School District, the plaintiff child claimed that her asthma prevented her from wearing a mask at school. After the school district denied her medical exemption, plaintiff’s parent brought suit on her behalf alleging that the school violated both her Fourteenth Amendment Due Process rights in denying the exemption, as well as her rights under the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. The lower court held, and the Second Circuit affirmed, that the Due Process claim failed because mask mandates do not infringe a fundamental constitutional right. However, the Second Circuit overturned the lower court regarding the ADA and § 504 claims explaining that plaintiff was not required to exhaust her claims under the Individuals with Disabilities Education Act (IDEA) before seeking damages under the ADA.

Thursday April 4th: The Court of Appeals of Indiana almost entirely upheld a preliminary injunction blocking Indiana’s abortion law from being applied against certain religious individuals in Individual Members of Medical Licensing Board of Indiana v. Anonymous Plaintiff 1. Plaintiffs, members of a group called Hoosier Jews for Choice and five anonymous women, challenged Indiana’s restrictive 2022 law criminalizing most abortions based on the state’s Religious Freedom Restoration Act (RFRA). The court held that the issue was justiciable because the group Hoosier Jews for Choice was a valid associational plaintiff for standing, and the plaintiffs established ripeness by showing that they were altering their current behavior based on a fear of not being able to get an abortion in the future.

The court also held that the plaintiffs had shown they were likely to succeed on the merits of their RFRA claim because they had shown that they had sincerely held religious beliefs that would require them to get abortions that were otherwise illegal under the ban, and that the state’s abortion ban was not narrowly tailored enough given the medical exemptions currently allowed. The appeals court remanded to the lower court to clarify that the preliminary injunction only applies for plaintiffs who would have valid RFRA claims if they challenged the ban.