L.A. public school officials have persuaded a federal appeals court to take another look at a ruling from their colleagues, which had appeared to clear the way for teachers to sue the district for forcing them to choose between getting a Covid shot or losing their jobs.
On Feb. 4, the U.S. Ninth Circuit Court of Appeals agreed to hear the case en banc, meaning a full complement of 13 judges will decide if a Los Angeles federal judge was right to toss the the lawsuit from the Los Angeles public school employees and medical freedom advocates against the Los Angeles Unified School District challenging the district's Covid shot mandate.
In the order, Ninth Circuit Chief Judge Mary Murguia said that a majority of the Ninth Circuit's "non-recused active judges" voted to rehear the case.
U.S. Ninth Circuit Judge Ryan Nelson
| Federalist Society
The order vacated an earlier 2-1 decision, issued last June by a panel of three Ninth Circuit judges in favor of the LAUSD workers and their medical freedom allies.
The order provided no other reason for vacating the smaller panel's opinion.
The ruling comes as the latest step in a long-running court fight over whether the LAUSD - and, by extension, other school districts and public employers in California and elsewhere - violated the constitutional rights of their workers in the way they implemented Covid vaccine mandates and fired or otherwise punished those who refused the shot
The legal action began in 2021 when a group known as California Educators for Medical Freedom sued LAUSD. They were joined in the action by named individual plaintiffs Jeffrey Fuentes, Sandra Garcia, Hovhannes Saponghian and Norma Brambila.
The lawsuit accused LAUSD of violating its workers' "fundamental rights to refuse medical treatment" by forcing them to receive a Covid shot, despite their objections and requests for exemptions, or face termination.
After the lawsuit was filed, LAUSD issued a "clarifying memorandum" to allow employees who wished to remain unvaccinated to instead regularly test for Covid. A judge, relying on that change to the policy, dismissed the lawsuit, asserting the testing option meant there was no future threat the workers could face.
However, the district then quickly eliminated the testing option, bringing the case back to court, this time joined by the Health Freedom Defense Fund and new individual plaintiffs.
In the renewed lawsuit, the plaintiffs specifically asserted the LAUSD Covid shot mandate is unconstitutional because it requires workers to receive a "medical treatment," which at best only reduces the severity of a disease's symptoms, and not a true "vaccine," which prevents people from acquiring an infectious disease.
A Los Angeles federal judge again dismissed the lawsuit, asserting the school district can constitutionally impose the mandate. He pointed to the longstanding U.S. Supreme Court decision in Jacobson v Massachusetts. That decision, which authorized Massachusetts health officials in 1905 to force vaccine skeptics to receive smallpox inoculations, has been used by governments for generations to enforce vaccine mandates.
The plaintiffs appealed to the Ninth Circuit. During oral arguments, school officials came under intense questioning from the appellate judges. And 12 days after those arguments, LAUSD's board voted to rescind the mandate. Their attorneys then argued the case should be dismissed because their recission of the mandate made the legal dispute moot.
They noted LAUSD Board President Jackie Goldberg said "she did not regret imposing the mandate for 'one moment, not 30 seconds, not one tiny bit.'"
"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," wrote Ninth Circuit Judge Ryan D. Nelson in the majority opinion.
In the majority decision, Nelson and his colleague, Daniel P. Collins, further agreed the demonstrated ineffectiveness of Covid shots to actually prevent infection and transmission of the Covid virus may place the shots in a different category than "traditional vaccines" which prevent people from becoming infected.
They said the holdings of the Jacobson decision shouldn't apply to prevent the lawsuit in this case, because the school district has yet to produce evidence to back their contentions that the Covid vaccines "effectively 'prevent the spread' of COVID-19."
"LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this," Nelson noted.
Collins further noted that, since the Covid shots don't prevent the infection or transmission of Covid, the school district can't show the shots actually have any benefit for anyone other than those receiving the shots.
"The Supreme Court's caselaw thus clarifies that compulsory treatment for the health benefit of the person treated - as opposed to compulsory treatment for the health benefit of others - implicates the fundamental right to refuse medical treatment," Collins wrote.
Following the Ninth Circuit panel's ruling, the LAUSD asked for the decision to be reviewed by an 13-member en banc panel.
They argued the decision was wrong for allowing the lawsuit to continue when the district had rescinded the mandate, which they said should have ended the matter, regardless of the way the district had handled the matter before it became clear they could lose on appeal.
And LAUSD further argued the majority on the three-judge panel had wrongly decided that Jacobson shouldn't apply in this matter.
LAUSD asserted that states and local governments have the authority to require workers and potentially others to receive a vaccine, even if the vaccine doesn't actually prevent infection and transmission of a disease. The only thing that matters legally, LAUSD argues, is if the state and other local governments believe the vaccine is "the most effective method of protecting the public from disease."
They said courts should have no say on such matters.
"That responsibility rests on other branches of government," the school district's lawyers wrote.
"Here, en banc review is necessary to correct the majority’s overstep in its consideration of the purported efficacy of the COVID-19 vaccine as opposed to the ability to implement those policies to protect the community against the exigencies of the COVID-19 pandemic," LAUSD said in its brief, filed June 21.
California Attorney General Rob Bonta and Oregon Attorney General Ellen F. Rosenblum also waded into the dispute, filing a brief that backed the LAUSD's arguments.
They also asserted that state and local governments have the power to require workers and others to receive vaccines, even if they don't prevent infection or transmission, and that courts must stay out of any public debate on such questions.
"The panel decision’s erroneous treatment of a vaccine’s efficacy as a factual issue for adjudication by a court or jury poses grave risks to public health, especially when planning for the next significant outbreak of infectious disease," Bonta and Rosenblum wrote in their filing. "During public-health emergencies, officials need to be able to take lifesaving action based on incomplete or imperfect information.
"If the legality of those decisions turns on factual determinations by judges or juries - determinations that may well vary from case to case - chaos threatens to ensue."
In response, the LAUSD employee plaintiffs and medical freedom advocates defended the majority decision, saying the judges there got it right, balancing the need for the courts to defer to government authorities during a time of public health emergency, while preserving the ability of those affected by those authorities' decisions to challenge the decisions and the reasoning on which those decisions were based, once the emergency has ended.
Granting en banc review and tossing out the prior ruling "sets a poor standard," they said, denying citizens the right to have their causes against potentially unconstitutional actions heard in court, simply because the government "complains hard enough" and "does not get its way."
"The proper course is to deal with new cases as they arise, giving the proper consideration to the law and facts involved, in the proper context, not to anticipate and create conflicts and harms that may never exist," wrote the plaintiffs in their response brief, filed July 29.
The Ninth Circuit set a March 17 hearing date for oral arguments before the en banc panel.
Following Murguia's order, Health Freedom Defense Fund President Leslie Manookian in a post on X.com called the decision "disappointing news" and said the HFDF will present arguments on March 17.
LAUSD is represented in the case by attorneys Connie L. Michaels and Carrie A. Stringham, of the firm of Littler Mendelson PC, of Los Angeles and San Diego.
Plaintiffs have been represented by attorneys John W. Howard and Scott J. Street, JW Howard Attorneys, San Diego; and George R. Wentz Jr., of The Davillier Law Group, of New Orleans.