noting that it is common for hospitals to place vaccine mandates on employees
How later courts described this case
- noting that it is common for hospitals to place vaccine mandates on employees
- “[E]ach defendant’s contacts with the forum state must be assessed individually . . . , [so] plaintiffs may not aggregate defendants’ forum contacts and may not establish personal jurisdiction without specifying who did what.”
Written by the judges who cited it.
The opinion
Case: 24-40436 Document: 95-1 Page: 1 Date Filed: 04/02/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 2, 2025
No. 24-40436
Lyle W. Cayce
____________
Clerk
Jeri Pearson; Elizabeth Klem; Ben Homan; Rob Fowler,
Plaintiffs—Appellants,
versus
Shriners Hospitals for Children, Incorporated;
Shriners Hospitals for Children, Texas; Beverly
Bokovitz; Frances Farley; Jerry Gantt; John McCabe;
Phillip Grady; Cecile Erwin Young,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:23-CV-387
______________________________
Before Wiener, Stewart, and Southwick, Circuit Judges.
Carl E. Stewart, Circuit Judge:
Plaintiffs-Appellants (the “Former Employees”) were terminated
from Shriners Hospitals for Children for refusing to get a COVID-19
vaccination. They then sued their private employer, its agents, and the
Executive Commissioner of Texas Health and Human Services, for violating
Case: 24-40436 Document: 95-1 Page: 2 Date Filed: 04/02/2025
No. 24-40436
their alleged right to refuse the vaccine. 1 The Former Employees asserted
various 42 U.S.C. § 1983 claims, a claim directly under the statute permitting
the vaccine’s Emergency Use Authorization (the “EUA Statute”), and
various Texas state-law claims. We AFFIRM the district court’s judgment
dismissing with prejudice the Former Employees’ federal-law claims. We
also AFFIRM the district court’s judgment dismissing the Former
Employees’ state-law claims with prejudice for lack of supplemental
jurisdiction, however, we MODIFY the judgment to reflect that it is without
prejudice and AFFIRM as MODIFIED.
I.
Nearly a year after COVID-19 first reached the United States, the
Secretary of Health and Human Services (“HHS”) issued EUAs for
vaccines developed by Pfizer, Moderna, and Johnson & Johnson. 2 Because of
the short timeline, the Food and Drug Administration (the “FDA”) had not
yet fully approved the vaccines. To streamline and organize the national
vaccination effort, the federal government purchased all the available
COVID-19 vaccines in the United States. Those vaccines were available
exclusively through the federal COVID-19 vaccination program, in
coordination with state and local governments.
Under this arrangement, states were responsible for “ensur[ing] the
COVID-19 Vaccination Program [was] implemented throughout the
_____________________
1
Throughout this opinion we refer to the Defendants–Appellants in three groups:
(1) Shriners Hospitals for Children and its wholly owned subsidiary Shriners Hospitals for
Children, Texas, as “Shriners”; (2) Beverly Bokovitz, Frances Farley, Jerry Gantt, John
McCabe, and Phillip Grady as the “Agents”; and (3) the Executive Commissioner of Texas
Health and Human Services as the “Commissioner.”
2
Because this case was dismissed on a motion to dismiss, we draw all facts from
the Former Employees’ amended complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009).
2
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No. 24-40436
jurisdiction in adherence with federal guidance and requirements.” The
organizations that administered vaccines to patients had similar obligations
to “comply with all applicable requirements as set forth by the [FDA],
including but not limited to requirements in any EUA that covers COVID-19
Vaccine[s].” For example, before administering the vaccine, providers had
to “provide an approved [EUA] fact sheet or vaccine information statement
(VIS) . . . to each vaccine recipient.” As required under the EUA Statute,
those fact sheets contained information that “informed” patients “of the
option to accept or refuse administration of the product, [and] of the
consequences, if any, of refusing administration of the product.” See 21
U.S.C. § 360bbb-3(e)(1)(A)(ii)(III).
Shriners was one vaccine provider. As a private nonprofit corporation,
it operates an international network of children’s hospitals. The Former
Employees worked at one of those hospitals in Galveston, Texas. Shriners is
incorporated in Colorado and headquartered in Florida. The two Agents who
signed the vaccine provider agreement—Beverly Bokovitz and Frances
Farley—were based outside of Texas.
In November 2021, Shriners adopted a companywide policy that
required its employees to be vaccinated against COVID-19. The policy
permitted employees to get vaccinated through Shriners or independent
entities. The three Agents who signed the policy—Jerry Gantt, John
McCabe, and Phillip Grady—were also based outside of Texas. The Former
Employees refused to get vaccinated, so Shriners terminated their
employment.
In December 2023, nearly two years after the Former Employees were
terminated, they sued Shriners, its Agents, and the Commissioner. They
3
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No. 24-40436
raised six § 1983 claims, 3 a standalone claim under the EUA Statute, and
three Texas state-law claims. 4 The Former Employees argued that,
Shriners—allegedly a state actor by virtue of the vaccine provider
agreement—and its Agents violated their right to refuse the vaccine without
consequences through the mandatory vaccination policy. They also argued
that the Commissioner, for her part, allegedly violated the same right by
failing to stop Shriners. They posited that she breached her duty to ensure
that vaccine providers within Texas did not impose a burden on their choice
to refuse the vaccine.
Shriners, its Agents, and the Commissioner moved to dismiss the
Former Employees’ claims. Shriners and its Agents argued that (1) there was
no personal jurisdiction over the Agents, (2) the § 1983 claims were time
barred, (3) there was no state action as required under § 1983, (4) none of the
nonconstitutional provisions confer private rights of action under § 1983 or
under the provisions themselves, (5) each claim failed on its merits,
(6) Shriners and its Agents are entitled to qualified immunity, and (7) the
district court should decline to exercise supplemental jurisdiction over the
state-law claims. 5
_____________________
3
Under § 1983, the Former Employees alleged violations of their (1) substantive
due process right to refuse a vaccine; (2) “privacy rights” under the Fourteenth
Amendment; (3) equal protection right not to be classified on the basis of vaccination
status; (4) procedural due process right to a hearing prior to depriving them of their right
to refuse a vaccine without penalty; (5) right to be free from unconstitutional conditions;
(6) right to refuse a vaccine under various statutes, treaties, and administrative actions.
4
Under Texas state law, the Former Employees alleged (1) breach of contract as a
third-party beneficiary to the vaccine provider agreement between Shriners and the federal
government; (2) wrongful termination, and (3) intentional infliction of emotional distress.
5
Shriners and its Agents do not renew on appeal their arguments that the Former
Employees’ § 1983 claims are time barred or that they are entitled to qualified immunity.
Thus, we address them no further.
4
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No. 24-40436
The Commissioner, for her part, argued that (1) the Former
Employees lacked standing to sue her on traceability grounds, 6 (2) she was
not personally involved in creating the policy or terminating the Former
Employees, as required under § 1983, (3) none of the nonconstitutional
provisions under which the Former Employees brought claims conferred
private rights of action, (4) each claim failed on its merits, and (5) she is
entitled to qualified immunity because the Former Employees have failed to
cite a clearly established right.
The district court agreed with the defendants and dismissed all the
Former Employees’ claims. First, it determined that there was no personal
jurisdiction over the Agents because they were protected by the fiduciary
shield doctrine. Second, it found no state action to support the § 1983 claims.
It noted that even assuming that Shriners was a state actor in its capacity as
vaccine provider, it issued the mandatory vaccination policy in its capacity as
a private employer. Third, the court dismissed the Former Employees’
standalone claim under the EUA Statute because Shriners had no obligation
as an employer, as opposed to as a vaccine provider, to give them the option
to refuse the vaccine. Fourth, the court dismissed the Former Employees’
claims against the Commissioner because she could not be liable for failing to
correct Shriners’s alleged misconduct when it was not unlawful. Finally, the
court dismissed the remaining state-law claims as a matter of discretion under
_____________________
6
The Commissioner does not renew this argument on appeal. We nonetheless
address it due to our independent obligation to evaluate Article III standing. See Ford v.
NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 331–32 (5th Cir. 2002).
5
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No. 24-40436
the supplemental jurisdiction statute. See 28 U.S.C. § 1367(c)(3). 7 The
Former Employees timely appealed.
II.
“Personal jurisdiction is a question of law reviewed de novo.” Admar
Int’l, Inc. v. Eastrock, L.L.C., 18 F.4th 783, 786 (5th Cir. 2021) (emphasis
added). Similarly, “[q]uestions of law relating to constitutional standing are
reviewed de novo.” In re Deepwater Horizon, 739 F.3d 790, 798 (5th Cir.
2014). We also “review de novo a dismissal under rule 12(b)(6), applying the
same standards as did the district court.” Kane Enters. v. MacGregor (USA)
Inc., 322 F.3d 371, 374 (5th Cir. 2003).
“We review a district court’s denial of leave to amend under
Rule 15(a) for an abuse of discretion.” Stripling v. Jordan Prod. Co., 234 F.3d
863, 872 (5th Cir. 2000).
III.
For reasons that we now discuss, the district court did not err in
dismissing the Former Employees’ claims against the Agents, Shriners, or
the Commissioner. Respectively, it did not have personal jurisdiction over
_____________________
7
The Former Employees have not appealed the district court’s decision declining
to exercise supplemental jurisdiction over their state-law claims. We still note that “[a]
district court may decline to exercise supplemental jurisdiction over state law claims if it
has dismissed all claims over which it has original jurisdiction.” McCreary v. Richardson,
738 F.3d 651, 660-61 (5th Cir. 2013) (citing 28 U.S.C. § 1367(c)(3)). “When [it] exercises
its discretion to dismiss state law claims,” however, “it must do so without prejudice so
that the plaintiff may refile in the appropriate state court.” Id. (citing Bass v. Parkwood
Hosp., 180 F.3d 234, 246 (5th Cir. 1999)). Here, the district court dismissed the Former
Employees’ state-law claims with prejudice but should have done so without prejudice. See
id. For that reason, we modify its judgment of dismissal as to those claims to be without
prejudice and affirm as modified.
6
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No. 24-40436
the Agents, Shriners was not a state actor when it implemented its mandatory
vaccination policy, and the Commissioner was entitled to qualified immunity.
A.
We start with the claims against the Agents. Because the Former
Employees have failed to establish personal jurisdiction for these claims, they
necessarily fail. Sangha v. Navig8 ShipManagement Pvt. Ltd., 882 F.3d 96, 101
(5th Cir. 2018).
“When personal jurisdiction is challenged, the plaintiff ‘bears the
burden of establishing the district court’s jurisdiction over the defendant.’”
Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343 (5th Cir. 2002) (quoting
Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999)). A district court
may rule on a motion to dismiss for lack of personal jurisdiction without an
evidentiary hearing, but if so, the plaintiff must establish “a prima facie case
of personal jurisdiction.” Sangha, 882 F.3d at 101 (citing Quick Techs, 313
F.3d at 343). “[U]ncontroverted allegations in the plaintiff’s complaint must
be taken as true, and conflicts between the facts contained in the parties’
affidavits must be resolved in the plaintiff’s favor.” D.J. Invs., Inc. v. Metzeler
Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985).
A plaintiff establishes the requisite a prima facie case by showing that
“the [forum] state’s long-arm statute extends to the defendant and exercise
of such jurisdiction is consistent with due process.” Sangha, 882 F.3d at 101
(citation omitted). “Because the Texas long-arm statute extends to the limits
of federal due process, the two-step inquiry collapses into one federal due
process analysis.” Id. (quoting Johnston v. Multidata Sys. Int’l Corp., 523 F.3d
602, 609 (5th Cir. 2008)). “Due process requires that the defendant have
‘minimum contacts’ with the forum state . . . and that exercising jurisdiction
is consistent with ‘traditional notions of fair play and substantial
7
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No. 24-40436
justice.’” Id. (quoting Johnston, 523 F.3d at 609); see Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (stating the same).
“Minimum contacts” can give rise to specific jurisdiction. Sangha,
882 F.3d at 101 (citing Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001)). 8
For out-of-state defendants, courts have specific jurisdiction “only if the
cause of action asserted arises out of or is related to those contacts.” Id.
(emphasis omitted) (quoting Int’l Energy Ventures Mgmt., L.L.C. v. United
Energy Grp., Ltd., 818 F.3d 193, 212 (5th Cir. 2016)). If the relevant claims
are based on “intentional, and allegedly tortious[] actions,” the defendant’s
out-of-state actions must have been “expressly aimed at” the forum state.
Calder v. Jones, 465 U.S. 783, 789 (1984); see Walden v. Fiore, 571 U.S. 277,
288 n.7 (2014) (quoting the same).
“Each defendant’s contacts with the forum [s]tate must be assessed
individually.” Calder, 465 U.S. at 790. Thus, plaintiffs may not aggregate
defendants’ forum contacts and may not establish personal jurisdiction
without specifying who did what. Rush v. Savchuk, 444 U.S. 320, 331–32
(1980); see Head v. Las Vegas Sands, Ltd. Liab. Corp., 760 F. App’x 281, 284
(5th Cir. 2019) (unpublished) (requiring “plaintiffs to submit evidence
supporting personal jurisdiction over each defendant without grouping them
together”).
The Former Employees failed to satisfy this standard for jurisdiction
over the Agents. They allege that Shriners took several actions, but they only
ascribed one to each Agent: Bokovitz and Farley signed the vaccination
provider agreement, and Gantt, McCabe, and Grady signed the mandatory
_____________________
8
Because the Former Employees do not allege general jurisdiction over the Agents,
we discuss it no further. See Ctr. for Biological Diversity v. EPA, 937 F.3d 533, 542 & n.4 (5th
Cir. 2019) (“Arguments . . . in favor of jurisdiction . . . can be forfeited.” (emphasis
added)).
8
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No. 24-40436
vaccination policy. The Agents’ names appear nowhere else in the amended
complaint.
Bokovitz’s and Farley’s acts—signing the vaccination provider
agreement—are insufficient to support specific jurisdiction. Although these
actions are relevant to the Former Employees’ theory on why Shriners is a
state actor, they have nothing to do with depriving the Former Employees of
their alleged right to refuse vaccinations without consequences. They relate
to Shriners’s vaccine administration across the United States, not targeted
toward Texas. Thus, their claims against Bokovitz and Farley based on that
right do not “arise out of or relate to” the pair’s “contacts” with Texas. See
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 359 (2021)
(quoting Bristol Myers Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255, 262
(2017)).
Likewise, Gantt’s, McCabe’s, and Grady’s acts—signing Shriners’s
mandatory vaccination policy—are not sufficiently connected to Texas to
support specific jurisdiction. These actions relate to the Former Employees’
claims, but there is no indication that the mandatory vaccination policy was
signed in Texas or otherwise focused on Texas. To the contrary, Shriners is
an international entity with locations across the United States and Canada.
And the policy appears to apply to all Shriners locations. Thus, it was not
“expressly aimed at” Texas. See Calder, 465 U.S. at 790; see also Revell v.
Lidov, 317 F.3d 467, 475 (5th Cir. 2002) (holding that a defamatory online
article “presumably directed at the entire world, or perhaps just concerned
U.S. citizens,” was “not directed specifically at Texas” for personal
jurisdiction purposes).
9
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No. 24-40436
Because the Former Employees do not allege acts by any of the Agents
to establish a prima facie case for personal jurisdiction, the district court
properly dismissed the claims against them. See Sangha, 882 F.3d at 101. 9
B.
As stated, the Former Employees bring claims against Shriners under
§ 1983 and the EUA Statute. Both sets of claims fail.
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). Although “a court must accept as true
all of the [factual] allegations contained in a complaint,” the same is not true
of “legal conclusions.” Id.
1.
To bring a claim under § 1983, a plaintiff must first show state action.
Priester v. Lowndes Cnty., 354 F.3d 414, 421 (5th Cir. 2004); see Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If
a defendant’s conduct satisfies the state-action requirement of the
Fourteenth Amendment, the conduct also constitutes action ‘under color of
state law’ for § 1983 purposes.” (citation omitted)). “A private entity can
qualify as a state actor in a few limited circumstances.” Manhattan Cmty.
Access Corp. v. Halleck, 587 U.S. 802, 809 (2019). Those “includ[e], for
example (i) when the private entity performs a traditional, exclusive public
_____________________
9
The parties also disagree as to whether the district court erred by concluding that
the fiduciary shield doctrine bars personal jurisdiction over the Agents. That doctrine, “if
applicable, prevents the exercise of personal jurisdiction based solely on acts undertaken in
a defendant’s corporate capacity.” Savoie v. Pritchard, 122 F.4th 185, 191 (5th Cir. 2024).
Because we conclude that we lack personal jurisdiction over the Agents regardless of
whether the doctrine applies, we do not analyze it any further.
10
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No. 24-40436
function; (ii) when the government compels the private entity to take a
particular action, or (iii) when the government acts jointly with the private
entity.” Id. (citations omitted). They also include (iv) “when the private
entity is entwined with governmental policies, or when government is
entwined in its management or control.” Brentwood Acad., 531 U.S. at 295
(cleaned up). “Deciding whether a deprivation of a protected right” falls
within one of these categories “begins by identifying the specific conduct of
which the plaintiff complains.” Cornish v. Corr. Servs. Corp., 402 F.3d 545,
550 (5th Cir. 2005) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
51 (1999)). That is because a defendant “may be a state actor for some
purposes but not for others.” Id. (quoting George v. Pacific-CSC Work
Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996)).
For the Former Employees’ claims, the relevant conduct is Shriners
adopting and enforcing its mandatory vaccination policy. Under that policy,
it terminated the Former Employees for refusing to get vaccinated. It
expressly permitted employees to get vaccinated through Shriners or other
entities. Thus, Shriners did not implicate its role administering COVID-19
vaccinations by requiring its employees to receive one. See Cornish, 402 F.3d
at 550. 10
A private organization requiring its employees to receive a vaccination
is not state action. See Halleck, 587 U.S. at 809. First, imposing such a
requirement is not a “power[] traditionally exclusively reserved to the
State.” See Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). It is
commonplace for companies—particularly hospitals—to place such
mandates on their employees. See Julapalli v. Boom, No. 24-20276, 2025 WL
_____________________
10
We express no opinion regarding whether Shriners was a state actor in its role
administering vaccines to its patients.
11
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314123, at *3 (5th Cir. Jan. 28, 2025) (unpublished) (holding that a private
hospital’s mandatory vaccination policy was not a public function). Second,
the Former Employees have not alleged evidence showing that Texas
compelled Shriners to adopt the policy. See Blum v. Yaretsky, 457 U.S. 991,
1004–05 (1982). Third, they have not alleged evidence showing that the
policy constitutes joint action between Shriners and Texas. Joint action
requires “an agreement or meeting of the minds between the state actor and
the private actor to engage in a conspiracy to deprive the plaintiff of a
constitutional right, and that the private actor was a willing participant in
joint activity with the state or its agents.” Hernandez v. Causey, 124 F.4th
325, 337 (5th Cir. 2024) (citation omitted). The Former Employees have
alleged no such “conspiracy” to adopt the mandatory vaccination policy. See
id. And fourth, they did not allege that Texas was “entwined” with
Shriners’s decision to adopt the policy. See Brentwood Acad., 531 U.S. at 295.
The Former Employees have not alleged that Texas had any “say” in the
hospital’s “internal decision making” or that it had a “role in enacting or
enforcing” the policy. See Rundus v. City of Dallas, 634 F.3d 309, 314–15 (5th
Cir. 2011).
Because the Former Employees have failed to allege that “the specific
conduct of which [they] complain[]” is state action, their § 1983 claims fail.
See Cornish, 402 F.3d at 550.
2.
The EUA Statute permits the HHS Secretary to authorize use of a
“drug, device, or biological product intended for [such] use in an actual or
potential emergency.” 21 U.S.C. § 360bbb-3(a)(1). It also requires the
Secretary to establish “[a]ppropriate conditions designed to ensure that
individuals to whom the product is administered are informed . . . of the
option to accept or refuse administration of the product.” 21 U.S.C.
12
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§ 360bbb-3(e)(1)(A)(ii)(III). The Former Employees read this language to
expressly provide them with “the option to accept or refuse” the COVID-19
vaccine without penalty. Id. They argue that Shriners deprived them of this
purported right when it terminated them.
It did not. The EUA Statute’s “option . . . to refuse” is far narrower
than the Former Employees suggest. See id. To start, they again conflate
Shriners’s role as a private employer with its role as a vaccine provider. The
EUA Statute only concerns the latter. Even assuming it places duties on
anyone other than the HHS Secretary, the provision at issue focuses on
vaccine providers. See id. It expressly limits its scope to the “person who
carries out” the “activity” of administering COVID-19 vaccines. Id. The
Former Employees, by eliding this distinction, violate “a fundamental canon
of statutory construction that the words of a statute must be read in
their context and with a view to their place in the overall statutory scheme.”
See West Virginia v. EPA, 597 U.S. 697, 721 (2022) (quotation omitted).
Because the EUA Statute “does not apply at all” to those acting in their role
as “private employers like the hospital in this case,” Shriners did not violate
it by terminating the Former Employees. Bridges v. Houston Methodist Hosp.,
543 F. Supp. 3d 525, 527 (S.D. Tex. 2021) (holding that a hospital did not
violate the EUA Statute by adopting a mandatory COVID-19 vaccination
policy on its employees because the statute “neither expands nor restricts the
responsibilities of private employers”); see Conner v. Kelly, No. 23-11225,
2024 WL 3177782, at *3 (5th Cir. June 26, 2024) (unpublished) (holding the
same when an airline adopted the same policy).
The EUA Statute’s explicit focus on providing information to
patients confirms this result. The provision at issue only requires vaccine
providers to ensure that their patients are “informed” of their “option to
13
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No. 24-40436
accept or refuse.” 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III). 11 It mentions no
restriction on whether those providers can require that their own workforce
be vaccinated. See id. Indeed, it expressly contemplates that individuals may
face “consequences” for “refusing” the vaccine. Id. Thus, the
“informational obligation” in the EUA Statute “falls short of expressing a
clear congressional intent to supersede state regulation of private
employment.” See Hughes v. Terminix Pest Control, Inc., No. 23-30617, 2024
WL 3440465, at *1 (5th Cir. July 17, 2024) (unpublished).
In sum, the Former Employees’ reliance on the EUA Statute is
misplaced. See Bridges, 543 F. Supp. 3d at 527; Hughes, 2024 WL 3440465,
at *1. Thus, the district court did not err in dismissing their claim under that
statute. 12
C.
The Former Employees raise the same set of claims against the
Commissioner as against Shriners and its Agents. For the Commissioner,
however, they allege a failure to intervene. Specifically, they allege that she
failed to prevent Shriners from terminating their employment. Although the
Former Employees had Article III standing to bring these claims, they
nonetheless fail because the Commissioner is entitled to qualified immunity.
1.
To satisfy Article III standing, a plaintiff must show that (1) she has
suffered an “injury in fact,” (2) the injury “likely was caused or likely will be
_____________________
11
Shriners provided those to whom it administered COVID-19 vaccinations with a
fact sheet detailing their “option . . . to refuse.” See 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III).
12
Given that Shriners did not violate the Former Employees’ rights under the
EUA Statute, we need not address whether that statute creates an implied private right of
action.
14
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No. 24-40436
caused” by the defendant, and (3) the injury is likely to be “redressed by the
requested judicial relief.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 380
(2024). “Where, as here, a case is at the pleading stage, the plaintiff must
clearly allege facts demonstrating each element.” Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016) (cleaned up).
Only the causation element is in question for the claims against the
Commissioner. 13 To satisfy that element, “the links in the chain of causation,
must not be too speculative or too attenuated.” Hippocratic Med., 602 U.S. at
383 (cleaned up); see Allen v. Wright, 468 U.S. 737, 751 (1984) (“A plaintiff
must allege personal injury fairly traceable to the defendant’s allegedly
unlawful conduct.”). The chain is impermissibly speculative or attenuated
when “it is not sufficiently predictable how third parties would react to
government action or cause downstream injury to plaintiffs.” Hippocratic
Med., 602 U.S. at 383.
For the Commissioner, it is “sufficiently predictable” what would
have occurred if she acted as the Former Employees wanted. See id. If she
had stopped Shriners from enforcing its mandatory vaccination policy, the
Former Employees would not have been terminated. Thus, her inaction is
not “too speculative or too attenuated” to be fairly traceable to their injury.
See id. at 380. They therefore have standing to sue her. See Hippocratic Med.,
602 U.S. at 380.
_____________________
13
The Former Employees have pleaded an injury in fact due to their termination
from employment at Shriners. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). They
have pleaded redressability due to seeking monetary damages from the Commissioner for
her failure to fulfill her alleged duty to intervene and stop Shriners from violating their right
to refuse the COVID-19 vaccine. See Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38
(1976).
15
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No. 24-40436
2.
Nonetheless, the Commissioner is entitled to qualified immunity
because the Former Employees’ claims against her are not based on clearly
established law. See Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Qualified immunity bars suit against state officials in their individual
capacity when “their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Id.
An official is only entitled to qualified immunity if she “performs
non-ministerial acts within the boundaries of h[er] official capacity.” Cherry
Knoll, L.L.C. v. Jones, 922 F.3d 309, 318 (5th Cir. 2019). “Once a public
official raises the defense of qualified immunity, the burden rests on the
plaintiff to rebut it.” Zarnow v. City of Wichita Falls, 500 F.3d 401, 407 (5th
Cir. 2007).
The Former Employees have failed to meet that standard. See id. They
contend that the Commissioner is not entitled to qualified immunity because
she acted without authority by willfully failing to perform ministerial duties.
Thus, their claims against her appear to be based on a failure-to-intervene
theory that resembles bystander liability. We have recently held, however,
that federal officers are entitled to qualified immunity when it is unclear if
they had a duty to intervene. See Diaz v. Cantu, 123 F.4th 736, 750 (5th Cir.
2024). As we explained in Cantu, bystander liability has not been extended
beyond the law enforcement context. See id. The Former Employees have
similarly pointed to no such caselaw here. Thus, they have failed to
demonstrate that they had a clearly established right to have the
Commissioner intervene and prevent Shriners from terminating their
employment. See Zarnow, 500 F.3d at 407.
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No. 24-40436
Because the Commissioner is entitled to qualified immunity, the
district court did not err in dismissing the Former Employees’ claims against
her. See Pearson, 555 U.S. at 231.
IV.
In the final paragraph of their reply brief, the Former Employees argue
for the first time that the district court should have either dismissed their
claims without prejudice or allowed them leave to amend their complaint.
They provide no analysis beyond quoting a single unpublished case stating
that it is dispreferred to dismiss a suit with prejudice without providing an
opportunity to amend. See Shah v. Novelis, No. 23-40231, 2024 WL 1739753,
at *3 (5th Cir. Apr. 23, 2024) (unpublished). They did not request such relief
from the district court.
We conclude that the Former Employees have forfeited this issue. See
Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015)
(“Arguments raised for the first time in a reply brief are [forfeited].”); United
States v. Bennett, 874 F.3d 236, 243 n.9 (5th Cir. 2017) (holding that a
“conclusory assertion” constitutes “inadequate briefing” to preserve an
argument for review); Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.
2021) (“[A]n issue will not be addressed when raised for the first time on
appeal unless it is a purely legal matter and failure to consider the issue will
result in a miscarriage of justice.” (citation omitted)). 14
_____________________
14
Even so, the case that the Former Employees cite is inapposite. It concerns the
standard for dismissal with prejudice under Rule 4(m) as a sanction for a plaintiff’s delay
or misconduct. See Shah, 2024 WL 1739753, at *3. The legal standard under that rule is
different than under Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. See Stripling, 234 F.3d at 872–73 (holding that, in the 12(b)(6) context, “[i]t is
within the district court's discretion to deny a motion to amend if it is futile”).
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No. 24-40436
V.
For the foregoing reasons, we AFFIRM the district court’s judgment
dismissing with prejudice the Former Employees’ federal-law claims. We
also AFFIRM the district court’s judgment dismissing the Former
Employees’ state-law claims with prejudice for lack of supplemental
jurisdiction, however, we MODIFY the judgment to reflect that it is without
prejudice and AFFIRM as MODIFIED.
18