{"id":9709,"date":"2024-07-20T06:00:00","date_gmt":"2024-07-20T11:00:00","guid":{"rendered":"https:\/\/cov19longhaulfoundation.org\/?p=9709"},"modified":"2024-06-09T12:56:04","modified_gmt":"2024-06-09T17:56:04","slug":"analysis-what-9th-circuit-ruling-reinstating-challenge-to-lausds-employee-vaccine-mandate-means","status":"publish","type":"post","link":"https:\/\/cov19longhaulfoundation.org\/?p=9709","title":{"rendered":"ANALYSIS: What 9th Circuit Ruling Reinstating Challenge to LAUSD&#8217;s Employee Vaccine Mandate Means"},"content":{"rendered":"\n<p><a href=\"https:\/\/redstate.com\/author\/jenvanlaar\"><\/a>y\u00a0<a href=\"https:\/\/redstate.com\/author\/jenvanlaar\">Jennifer Van Laar<\/a>\u00a0|\u00a04:27 PM on June 08, 2024, <small><em>The opinions expressed by contributors are their own and do not necessarily represent the views of RedState.com.<\/em><\/small><\/p>\n\n\n\n<p>In a split decision, a three-judge panel from the Ninth Circuit Court of Appeals issued a ruling Friday afternoon reversing the dismissal of a lawsuit filed by Los Angeles Unified School District (LAUSD) employees challenging the district&#8217;s COVID-19 vaccine mandate. The suit was remanded back to the District Court level, where it will proceed toward trial.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p id=\"isPasted\">On the merits, the district court misapplied the Supreme Court\u2019s decision in&nbsp;<em>Jacobson v. Massachusetts<\/em>, 197 U.S. 11 (1905), stretching it beyond its public health rationale. We vacate the district court\u2019s order dismissing this claim and remand for further proceedings under the correct legal standard.&nbsp;<\/p>\n<\/blockquote>\n\n\n\n<p>There are some pretty big takeaways from this ruling that could lead to ripple effects in other lawsuits, especially if the evidence at trial bears out what is in the pleadings and the court or a jury finds that evidence persuasive.<\/p>\n\n\n\n<p><strong><em><u>KEY POINTS<\/u><\/em><\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Plaintiffs argue that what&#8217;s commonly known as the COVID-19 vaccine isn&#8217;t a vaccine at all (because it doesn&#8217;t prevent transmission), but is a therapeutic, so it cannot be mandated by law.<\/li>\n\n\n\n<li>At the U.S. District Court level, a judge ruled that a 1905 Supreme Court ruling (<em>Jacobson v. Massachusetts<\/em>) related to mandatory smallpox vaccination allowed the COVID-19 vaccine mandate.<\/li>\n\n\n\n<li>The 9th Circuit panel ruled that, taking the Plaintiff&#8217;s pleadings as true (which they must at this point in the proceedings),\u00a0<em>Jacobson<\/em>\u00a0does not apply and that employees cannot be forced to receive &#8220;treatment&#8221; they don&#8217;t want to receive.<\/li>\n\n\n\n<li>The ruling rejected LAUSD&#8217;s claim that the suit is moot since the district had rescinded its mandate two weeks after oral arguments in this appeal went very poorly for the district, and gave a detailed timeline of LAUSD&#8217;s continued attempts to manipulate the legal proceedings.<\/li>\n<\/ul>\n\n\n\n<p>To fully appreciate LAUSD&#8217;s manipulative tactics, you have to understand the timeline.<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>March 4, 2021: LAUSD institutes an employee vaccine mandate, telling employees in a memo they would be notified when it was their turn to get the vaccine and making no allowance for exemptions or alternatives such as COVID testing<\/li>\n\n\n\n<li>March 17, 2021: LAUSD employees opposed to vaccination file suit<\/li>\n\n\n\n<li>March 18, 2021: LAUSD issues a &#8220;clarifying&#8221; memo allowing employees to COVID test in lieu of being vaccinated<\/li>\n\n\n\n<li>LAUSD files motion to dismiss lawsuit as moot<\/li>\n\n\n\n<li>July 27, 2021: U.S. District Court judge dismisses lawsuit without prejudice<\/li>\n\n\n\n<li>August 13, 2021: LAUSD reinstates vaccine mandate<\/li>\n\n\n\n<li>November 3, 2021: Lawsuit challenging mandate is refiled with additional plaintiffs<\/li>\n\n\n\n<li>September 2, 2022: U.S. District Court Judge Dale S. Fischer dismisses lawsuit with prejudice, awards costs to LAUSD<\/li>\n\n\n\n<li>November, 2022: Plaintiffs appeal to 9th Circuit Court of Appeals<\/li>\n\n\n\n<li>September 14, 2023: Oral arguments held before 9th Circuit panel on appeal; LAUSD attorney Connie Michaels asks Plaintiff&#8217;s counsel after arguments go poorly for her, &#8220;What are you going to do when they [LAUSD] rescind the mandate?&#8221;<\/li>\n\n\n\n<li>September 26, 2023: LAUSD board votes to rescind vaccine mandate<\/li>\n\n\n\n<li>October 4, 2023: Counsel for LAUSD argues employee lawsuit is moot because mandate has been rescinded<\/li>\n<\/ul>\n\n\n\n<p>The pleadings show a lot more detail about LAUSD&#8217;s manipulation, including that LAUSD&#8217;s Chief HR Officer stated in a deposition that back in July, 2021, the district was &#8220;drafting a [vaccine] mandate&#8221; yet they didn&#8217;t mention that to the judge before the lawsuit against them was dismissed as not yet being ripe. The actions of Attorney Michaels show that counsel was also involved in this manipulative behavior.<\/p>\n\n\n\n<p>That brings us to Friday&#8217;s ruling.<\/p>\n\n\n\n<p>Los Angeles attorney Julie Hamill, who represented the LA Parents&#8217; Alliance in a lawsuit challenging vaccine and mask mandates and social media censorship of mandate critics,&nbsp;<a href=\"https:\/\/twitter.com\/hamill_law\/status\/1799191304808894643\" target=\"_blank\" rel=\"noreferrer noopener\">broke down the ruling<\/a>:<\/p>\n\n\n\n<p>Leslie Manookian of Health Defense Freedom Fund, one of the plaintiffs in the case,&nbsp;<a href=\"https:\/\/healthfreedomdefense.org\/l-a-school-district-loses-court-battle-against-employees-who-refused-the-jab\/\" target=\"_blank\" rel=\"noreferrer noopener\">noted in a 2023 opinion piece<\/a>&nbsp;that there&#8217;s an unresolved conflict between&nbsp;<em>Jacobson<\/em>&nbsp;and another precedential SCOTUS case,&nbsp;<em>Cruzan vs. Director<\/em>, which held that medical treatments may be refused even if they might save a recipient\u2019s life. And, she states, in&nbsp;<em>Jacobson<\/em>&nbsp;&#8220;the court decided that vaccines could be mandated in clearly defined and limited situations, such as a deadly smallpox outbreak. But COVID is not smallpox. What\u2019s more,&nbsp;<em>Jacobson<\/em>&nbsp;allowed those who declined the vaccine to pay a fine \u2014&nbsp;<em>Jacobson<\/em>&nbsp;did not allow the state to force a vaccine on unwilling recipients on pain of losing their livelihoods.&#8221;<\/p>\n\n\n\n<p>Public health officials, including former CDC Director Rochelle Walensky, have admitted for years (even before LAUSD&#8217;s resurrected mandate on August 13, 2021) that the COVID-19 mRNA&nbsp;<a href=\"https:\/\/www.cnn.com\/2021\/08\/05\/health\/us-coronavirus-thursday\/index.html\" target=\"_blank\" rel=\"noreferrer noopener\">shot does not prevent transmission of the virus<\/a>&nbsp;and was ineffective against the Delta variant.<\/p>\n\n\n\n<p>And just this week former NIAID Director Dr. Anthony Fauci admitted under questioning from Congress that the COVID vaccine didn&#8217;t stop transmission of the virus.<\/p>\n\n\n\n<p>Fauci&#8217;s full reply (emphasis mine):&nbsp;<\/p>\n\n\n\n<p>Hamill, who is quite familiar with the silencing of truthful yet politically incorrect speech by Big Tech, then wrote:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>At this point I&#8217;m stunned that the 9th Circuit wrote a decision that would have been banned by Twitter, Meta, and all mainstream media outlets. Schiff must be losing his mind.<\/p>\n<\/blockquote>\n\n\n\n<p>In the decision Judge Ryan D. Nelson (<a href=\"https:\/\/en.wikipedia.org\/wiki\/Ryan_D._Nelson\" target=\"_blank\" rel=\"noreferrer noopener\">a Trump appointee<\/a>), detailed the unimpressive and unethical tactics used by LAUSD and its attorneys. Hamill writes:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>OH MY GOD. &#8220;According to a declaration submitted by Plaintiffs\u2019 counsel, LAUSD\u2019s attorney turned to him as they were leaving the courtroom and said, \u201cWhat are you going to do when we rescind the mandate?\u201d That same day, LAUSD\u2019s Superintendent (the 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. This lawsuit was mentioned by members of the public at the meeting of the Board. Indeed, one commenter played excerpts from the publicly available audio recording of the oral argument in this court.&#8221; THIS IS IN THE DECISION. Brutal for LAUSD and its lawyers.<\/p>\n<\/blockquote>\n\n\n\n<p>(The other two judges on the panel were&nbsp;<a href=\"https:\/\/t.co\/wWjGV8TdKS\" target=\"_blank\" rel=\"noreferrer noopener\">Michael D. Hawkins<\/a>, a Clinton appointee, and&nbsp;<a href=\"https:\/\/t.co\/2etD7AVoks\" target=\"_blank\" rel=\"noreferrer noopener\">Daniel Collins<\/a>, a Trump appointee. Collins voted with Nelson to vacate the judgment and remand the case to the District Court level.)<\/p>\n\n\n\n<p>Nelson continued:<\/p>\n\n\n\n<p>Nelson then explained how the District Court&#8217;s application of&nbsp;<em>Jacobson<\/em>&nbsp;was incorrect in the case.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>&#8220;The district court relied on&nbsp;<em>Jacobson<\/em>&nbsp;to hold that the Policy was rooted in a legitimate government interest. (citation). But&nbsp;<em>Jacobson<\/em>&nbsp;does not directly control based on Plaintiffs\u2019 allegations. In&nbsp;<em>Jacobson<\/em>, the Supreme Court balanced an individual\u2019s liberty interest in declining an unwanted smallpox vaccine against the State\u2019s interest in preventing disease. (citation). The Court explained that the \u201cprinciple of vaccination\u201d is &#8216;to prevent the spread of smallpox.&#8217; (citation). Because of this, the Court concluded that the State\u2019s interest superseded&nbsp;<em>Jacobson<\/em>\u2019s liberty interest, and the vaccine requirement was constitutional.<\/p>\n\n\n\n<p>&#8220;The district court reasoned that &#8216;<em>Jacobson<\/em>&nbsp;does not require that a vaccine have the specific purpose of preventing disease.&#8217; (citation). It acknowledged Plaintiffs\u2019 allegations that the vaccine did not &#8216;prevent transmission or contraction of COVID-19.&#8217; (citation). But it declared that &#8216;these features of the vaccine further the purpose of protecting LAUSD students and employees from COVID-19,&#8217; and thus &#8216;the Policy survives rational basis review.'&#8221;<\/p>\n<\/blockquote>\n\n\n\n<p>And then the smackdown:<\/p>\n\n\n\n<p>It&#8217;s important to note that the court did not find as a fact that the mRNA COVID shot is a treatment and not a vaccine, and did not find as a fact that it does not prevent the spread of COVID-19, as proceedings have not reached that stage; the court was simply ruling on a procedural motion as to whether the suit was moot and whether LAUSD&#8217;s motion for judgment on the pleadings was properly decided.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>&#8220;At this stage, we must accept Plaintiffs\u2019 allegations that the vaccine does not prevent the spread of COVID-19 as true. (citation). And, because of this,&nbsp;Jacobson&nbsp;does not apply. LAUSD cannot get around this standard by stating that Plaintiffs\u2019 allegations are wrong. Nor can LAUSD do so by providing facts that do not contradict Plaintiffs\u2019 allegations. It is true that we \u201cneed not [] accept as true allegations that contradict matters properly subject to judicial notice.\u201d (citation). But even if the materials offered by LAUSD are subject to judicial notice, they do not support rejecting Plaintiffs\u2019 allegations. LAUSD only provides a CDC publication that says \u201cCOVID-19 vaccines are safe and effective.\u201d But \u201csafe and effective\u201d for what? LAUSD implies that it is for preventing transmission of COVID-19 but does not adduce judicially noticeable facts that prove this.&#8221;<\/p>\n<\/blockquote>\n\n\n\n<p>With Friday&#8217;s ruling,&nbsp;<a href=\"https:\/\/healthfreedomdefense.org\/voluntary-cessation-does-not-moot-judicial-review\/\" target=\"_blank\" rel=\"noreferrer noopener\">the case will go back to the District Court level<\/a>&nbsp;for discovery and depositions and, eventually, an opportunity for plaintiffs to prove their case in court.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>y\u00a0Jennifer Van Laar\u00a0|\u00a04:27 PM on June 08, 2024, The opinions expressed by contributors are their own and do not necessarily represent the views of RedState.com. In a split decision, a [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":9711,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[761,337,445,973,607,608,1028],"tags":[],"class_list":["post-9709","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-concerns","category-mrna","category-policies-politics","category-vaccine-failure","category-vaccine-news","category-vaccine-safety","category-vaccine-shedding"],"_links":{"self":[{"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/posts\/9709","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9709"}],"version-history":[{"count":2,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/posts\/9709\/revisions"}],"predecessor-version":[{"id":9712,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/posts\/9709\/revisions\/9712"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=\/wp\/v2\/media\/9711"}],"wp:attachment":[{"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9709"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9709"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cov19longhaulfoundation.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9709"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}