Health Freedom Defense Fund, Inc. v. Alberto Carvalho

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEALTH FREEDOM DEFENSE No. 22-55908

FUND, INC., a Wyoming Not-for-

Profit Corporation; JEFFREY D.C. No.

FUENTES; SANDRA GARCIA; 2:21-cv-08688-

HOVHANNES SAPONGHIAN; DSF-PVC

NORMA BRAMBILA;

CALIFORNIA EDUCATORS FOR

MEDICAL FREEDOM, OPINION

Plaintiffs-Appellants,

v.

ALBERTO CARVALHO, in his

official capacity as Superintendent of

the Los Angeles Unified School

District; ILEANA DAVALOS, in her

official capacity as Chief Human

Resources Officer for the Los Angeles

School District; GEORGE

MCKENNA; MONICA GARCIA;

SCOTT SCHMERELSON; NICK

MELVOIN; JACKIE GOLDBERG;

KELLY GONEZ; TANYA ORTIZ

FRANKLIN, in their official

capacities as members of the Los

Angeles Unified School District

governing board,

2 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted En Banc March 18, 2025

San Francisco, California

Filed July 31, 2025

Before: Mary H. Murguia, Chief Judge, and Kim McLane

Wardlaw, Consuelo M. Callahan, John B. Owens, Mark J.

Bennett, Bridget S. Bade, Daniel P. Collins, Kenneth K.

Lee, Danielle J. Forrest, Salvador Mendoza, Jr. and Roopali

H. Desai, Circuit Judges.

Opinion by Judge Bennett;

Dissent by Judge Owens;

Partial Dissent by Judge Lee

SUMMARY *

COVID-19 Vaccination Policy

The en banc court affirmed the district court’s judgment

on the pleadings in favor of the Los Angeles Unified School

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 3

District (LAUSD) in an action brought pursuant to 42 U.S.C.

§ 1983 alleging that LAUSD’s COVID-19 vaccination

policy (the Policy), which required all employees to be fully

vaccinated, violated plaintiffs’ substantive due process and

equal protection rights.

Plaintiffs alleged that the Policy violated their

fundamental right to bodily integrity in refusing medical

treatment because COVID-19 vaccines are therapeutic

treatments that reduce symptoms but do not prevent

infection or transmission and additionally pose significant

health risks to the recipients. Plaintiffs also alleged that the

Policy violated their right to equal protection because it

arbitrarily classifies employees based on their vaccination

status.

As a threshold issue, the en banc court held that this case

was not moot. Although LAUSD rescinded the Policy

shortly after oral argument before the three-judge panel, the

court could still grant effective relief by ordering

reinstatement of the individual plaintiffs who remain

terminated from their original positions under the Policy.

On the merits, the en banc court, joining all the sister

circuits that have considered substantive due process

challenges to COVID-19 vaccine mandates, held that the

Policy was subject to rational basis review because Jacobson

v. Massachusetts, 197 U.S. 11 (1905), which upheld a

smallpox vaccine mandate, remains binding. Jacobson

holds that the constitutionality of a vaccine mandate, like the

Policy here, turns on what reasonable legislative and

executive decisionmakers could have rationally concluded

about whether a vaccine protects the public’s health and

safety, not whether a vaccine actually provides immunity to

or prevents transmission of a disease.

4 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

The Policy survives such review, as the LAUSD could

have reasonably concluded that COVID-19 vaccines would

protect the health and safety of its employees and

students. For this reason, plaintiffs’ equal protection claim

also failed under rational basis review. The en banc court

therefore affirmed the district court’s order granting

LAUSD’s motion for judgment on the pleadings.

Dissenting, Judge Owens wrote that the court lacks

jurisdiction because the case is moot, given that there is no

longer any policy for the court to enjoin or declare

unlawful. Nothing in the record (or the world) even hints at

the possibility that LAUSD would resurrect its COVID-19

vaccine mandate. The majority’s assertion that the

complaint’s boilerplate language fairly encompassed a

request for employment reinstatement did not survive close

inspection.

Dissenting in part, Judge Lee, joined by Judge Collins,

wrote that although he agrees that the case is not moot, he

believes that the court should not affirm the dismissal of this

lawsuit without permitting the plaintiffs to offer evidence to

rebut government officials’ far-reaching claims. Contrary to

the majority, he read the Supreme Court’s decision in

Jacobson as applying only if a vaccine prevents the

transmission and contraction of a disease. The plaintiffs

here plausibly claimed—at least at the pleading stage—that

the COVID-19 vaccine mitigates serious symptoms but does

not “prevent transmission or contraction of COVID-

19.” And if that is true, then Jacobson’s rational basis

review does not apply, and the court must examine the

vaccine mandate under a more stringent standard of

review. Ultimately, the plaintiffs may be wrong about the

COVID-19 vaccine, but they should be given a chance to

challenge the government’s assertions about it.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 5

COUNSEL

Scott J. Street (argued) and John W. Howard, JW Howard

Attorneys Ltd., San Diego, California; George R. Wentz Jr.,

The Davillier Law Group LLC, New Orleans, Louisiana; for

Plaintiffs-Appellants.

Keith A. Jacoby (argued) and Connie L. Michaels, Littler

Mendelson PC, Los Angeles, California; Carrie A.

Stringham, Littler Mendelson PC, San Diego, California; for

Defendants-Appellees.

Leigh A. Salmon, Senior Assistant Attorney General;

Benjamin Gutman, Solicitor General; Dan Rayfield,

Attorney General; State of Oregon, Salem, Oregon; Rob

Bonta, Attorney General, State of California, San Francisco,

California; Kathleen Jennings, Attorney General, State of

Delaware, Wilmington, Delaware; Kwame Raoul, Attorney

General, State of Illinois, Chicago, Illinois; William Tong,

Attorney General, State of Connecticut, Hartford,

Connecticut; Anne E. Lopez, Attorney General, State of

Hawai‘i, Honolulu, Hawai‘i; Anthony G. Brown, Attorney

General, State of Maryland, Baltimore, Maryland; Andrea J.

Campbell, Attorney General, Commonwealth of

Massachusetts, Boston, Massachusetts; Keith Ellison,

Attorney General, State of Minnesota, St. Paul, Minnesota;

Raul Torrez, Attorney General, State of New Mexico, Santa

Fe, New Mexico; Charity R. Clark, Attorney General, Office

of the Vermont Attorney General, Montpelier, Vermont;

Brian L. Schwalb, Attorney General, District of Columbia,

Washington, D.C.; Peter F. Neronha, Attorney General,

State of Rhode Island, Providence, Rhode Island; Dana

Nessel, Attorney General, State of Michigan; Lansing,

Michigan; Matthew J. Platkin, Attorney General, State of

New Jersey, Trenton, New Jersey; Letitia James, Attorney

6 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

General, Office of the New York State Attorney General,

Albany, New York; Nicholas W. Brown, Attorney General,

State of Washington, Olympia, Washington; Edward E.

Manibusan, Attorney General, Commonwealth of the

Northern Mariana Islands, Saipan, Northern Mariana

Islands; for Amici Curiae States of Oregon, California,

Connecticut, Delaware, Hawai‘i, Illinois, Maryland,

Massachusetts, Michigan, Minnesota, New Jersey, New

Mexico, New York, Rhode Island, Vermont, and

Washington, and the District of Columbia, and the

Commonwealth of the Northern Mariana Islands.

Sloan R. Simmons, Alyssa R. Bivins, and Ryan I. Ichinaga,

Lozano Smith LLP, Sacramento, California; Kristin

Lindgren-Bruzzone, California School Boards Association’s

Education Legal Alliance, West Sacramento, California; for

Amicus Curiae California School Boards Association’s

Education Legal Alliance.

Gregory Dolin, Mark Chenoweth, and Jenin Younes, New

Civil Liberties Alliance, Arlington, Virginia, for Amicus

Curiae New Civil Liberties Alliance.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 7

OPINION

BENNETT, Circuit Judge:

This case concerns the Los Angeles Unified School

District’s (“LAUSD”) COVID-19 vaccination policy

(“Policy”), which essentially required all of its employees to

be fully vaccinated. As relevant here, Plaintiffs 1 filed suit

under 42 U.S.C. § 1983, claiming that the Policy violated

their Fourteenth Amendment substantive due process and

equal protection rights. The district court granted judgment

on the pleadings to the LAUSD. 2 Plaintiffs appeal. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

As a threshold issue, this case is not moot. Although the

LAUSD rescinded the Policy shortly after oral argument

before the three-judge panel, a court could still grant

effective relief by ordering reinstatement of the individual

Plaintiffs who remain terminated from their original

positions under the Policy.

On the merits, we hold that the Policy is subject to

rational basis review because Jacobson v. Massachusetts,

197 U.S. 11 (1905), is binding and controls. The Policy

survives such review, as the LAUSD could have reasonably

concluded that COVID-19 vaccines would protect the health

and safety of its employees and students. For this reason,

Plaintiffs’ equal protection claim also fails under rational

1

“Plaintiffs” are the Health Freedom Defense Fund, California

Educators for Medical Freedom, and certain individuals who are or were

employed by the LAUSD.

2

Defendants are LAUSD employees and board members, named in their

official capacities. For simplicity, we refer to defendants collectively as

the “LAUSD.”

8 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

basis review. We therefore affirm the district court’s order

granting the LAUSD’s motion for judgment on the

pleadings.

BACKGROUND AND PROCEDURAL HISTORY 3

On January 30, 2020, the World Health Organization

declared COVID-19 a public health emergency. The next

day, President Trump and the Secretary of Health and

Human Services (“Secretary”) declared COVID-19 a public

health emergency. These emergency declarations were

renewed and extended into at least 2021. In February 2021,

President Biden extended the emergency declaration

because more than “500,000 people in th[e] Nation ha[d]

perished from the disease.” The Secretary renewed his

emergency declaration in January, April, and July 2021.

On August 13, 2021, the LAUSD issued the Policy

challenged here. The Policy established a mandatory

vaccination requirement for all LAUSD employees. Under

the Policy, employees had to be fully vaccinated 4 against

COVID-19 by October 15, 2021. The Policy allowed

employees to apply for religious or medical exemptions. But

even “exempt” employees were excludable from the

3

These facts are based on the allegations in the operative second

amended complaint, which we accept as true and construe in Plaintiffs’

favor. See Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). We

also consider documents incorporated into the complaint by reference.

See Webb v. Trader Joe’s Co., 999 F.3d 1196, 1201 (9th Cir. 2021). We

GRANT Plaintiffs’ motion to take judicial notice that the LAUSD voted

to withdraw the Policy on September 26, 2023. Dkt. No. 46.

4

The Policy defines “fully-vaccinated” as having “received the first and

second doses of the vaccine (or, in the case of Johnson & Johnson, the

single required dose) and [having] completed the two-week period that

follows to ensure maximum immunity.”

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 9

workplace “[i]f a risk to the health and safety of others [could

not] be reduced to an acceptable level through a workplace

accommodation.” The Policy explained that its purpose was

to “provide the safest possible environment in which to learn

and work.”

At the time the LAUSD issued the Policy, health experts

had been recommending that individuals get COVID-19

vaccinations and had been reporting that such vaccinations

are effective in preventing and spreading the disease. For

example, the U.S. Centers for Disease Control and

Prevention (“CDC”) reported that COVID-19 vaccines “are

highly effective at protecting vaccinated people against

symptomatic and severe COVID-19,” and “[f]ully

vaccinated people are less likely to become infected” and

“less likely to get and spread SARS-CoV-2.” Interim Public

Health Recommendations for Fully Vaccinated People,

CDC (July 28, 2021),

https://stacks.cdc.gov/view/cdc/108355

[https://perma.cc/AMW8-KH3Z]. The director of the CDC

reiterated that COVID-19 vaccines prevent “severe illness

and death.” Madeline Holcombe & Christina Maxouris,

Fully Vaccinated People Who Get a Covid-19 Breakthrough

Infection Can Transmit the Virus, CDC Chief Says, CNN

Health (Aug. 6, 2021),

https://edition.cnn.com/2021/08/05/health/us-coronavirus-

thursday/index.html [https://perma.cc/Z5RV-UPLR]. Other

experts urged that “[g]etting more people

vaccinated . . . w[ould] help prevent other—potentially even

more aggressive—variants from arising in the future.” Id.

A former CDC director explained that

“outbreaks . . . w[ould] not be as explosive in areas with

higher vaccination coverage.” Id. And a children’s hospital

10 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

president characterized “adult vaccination” as a “simple

solution” to protect children from COVID-19. Id.

After the LAUSD issued the Policy, health experts

continued to urge the public to get vaccinated. Indeed, the

CDC reported that “[v]accines remain the best public health

measure to protect people from COVID-19, slow

transmission, and reduce the likelihood of new variants

emerging.” Omicron Variant: What You Need to Know,

CDC (Dec. 9, 2021),

https://stacks.cdc.gov/view/cdc/112430

[https://perma.cc/B4EG-5QMR]. The CDC recommended

that “everyone 5 years and older protect themselves from

COVID-19 by getting fully vaccinated.” Id.

In November 2021, Plaintiffs filed this suit challenging

the Policy. The operative second amended complaint

(“SAC”) alleges that, under the Policy, the LAUSD

threatened to terminate employees who failed to get the

COVID-19 vaccination. According to the SAC, the LAUSD

terminated at least two of the individual Plaintiffs based on

their refusal to get vaccinated.

Although the SAC asserts several state and federal law

claims, the only claims before us are Plaintiffs’ Fourteenth

Amendment substantive due process and equal protection

claims brought under 42 U.S.C. § 1983. As to their due

process claim, Plaintiffs allege that the Policy violates their

fundamental right to bodily integrity in refusing medical

treatment, as the vaccines are “therapeutic treatments for

COVID and not vaccines at all.” According to Plaintiffs,

COVID-19 vaccines do not prevent infection or transmission

of COVID-19. Instead, the vaccines “only reduce symptoms

of those who are infected by COVID,” and thus they are

medical “treatments” and not traditional vaccines. The SAC

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 11

also alleges that the COVID-19 vaccines “cause a

significantly higher incidence of injuries, adverse reactions,

and deaths than any prior vaccines that have been allowed to

remain on the market, and, therefore, pose a significant

health risk to recipients.”

Plaintiffs also claim that the Policy violates their right to

equal protection because it arbitrarily classifies employees

based on their vaccination status. The SAC alleges that

vaccinated and unvaccinated employees are similarly

situated because both groups can be infected with and

transmit COVID-19. Thus, in Plaintiffs’ view, the Policy

arbitrarily treats the unvaccinated differently.

In terms of relief, the SAC seeks “[t]emporary,

preliminary, and permanent injunctive relief restraining [the

LAUSD] from enforcing” the Policy. It also contains a

general prayer for relief for “such other and further relief as

the Court may deem just and proper.”

The LAUSD moved for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), and the district court

granted the motion in September 2022. The court

determined that, under Jacobson, the substantive due

process claim failed because the Policy did not violate any

fundamental right and survived rational basis review. The

district court also decided that the equal protection claim

failed under rational basis review. The district court’s order

permitted Plaintiffs to amend their equal protection and

ADA claims. Plaintiffs declined to do so and instead timely

appealed.

A divided three-judge panel of our court vacated the

district court’s order and remanded. Health Freedom Def.

Fund, Inc. v. Carvalho, 104 F.4th 715, 718 (9th Cir. 2024),

vacated and reh’g en banc granted, 127 F.4th 750 (9th Cir.

12 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

2025). Before addressing the merits, the panel considered

whether the case had become moot in light of the LAUSD’s

recent recission of the Policy (twelve days after oral

argument). Id. at 721–22. Applying the voluntary cessation

exception to mootness, the panel majority determined that

the case was not moot because the LAUSD had failed to

show it was reasonably clear that the Policy would not be

reinstated. 5 Id. at 722–24. Judge Hawkins dissented from

the majority’s mootness determination. Id. at 728–32

(Hawkins, J., dissenting). In his view, the case was moot

“[b]ecause there [wa]s no longer any policy for the court to

enjoin or declare unlawful.” Id. at 732 (Hawkins, J.,

dissenting).

On the merits, the panel majority held that the district

court erred in applying Jacobson. Id. at 724–25. The

majority reasoned that Jacobson did not apply, much less

control, because it addressed only those vaccines that

provide immunity and prevent transmission. Id. Because

Plaintiffs alleged that COVID-19 vaccines, unlike traditional

vaccines, do not provide immunity and prevent transmission

(and the court must accept those allegations as true at the

judgment-on-the-pleadings stage), the panel majority held

that Jacobson did not apply. Id. Therefore, the panel

vacated the district court’s order and remanded for further

proceedings. Id. at 725.

5

See Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173 (9th

Cir. 2009) (“Under [the voluntary cessation exception to mootness], the

mere cessation of illegal activity in response to pending litigation does

not moot a case, unless the party alleging mootness can show that the

‘allegedly wrongful behavior could not reasonably be expected to

recur.’” (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000))).

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 13

The LAUSD petitioned for rehearing en banc. Dkt. No.

56. While it continued to urge that the case was moot, the

LAUSD also argued that the three-judge panel had

misapplied Jacobson, creating a conflict with our sister

circuits. Id. at 13–17. A majority of our active judges voted

to rehear this case en banc, and we vacated the three-judge

panel opinion. Health Freedom, 127 F.4th 750.

STANDARD OF REVIEW

“We review de novo an order granting a Rule 12(c)

motion for judgment on the pleadings. We must accept all

factual allegations in the complaint as true and construe them

in the light most favorable to the non-moving party.”

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009)

(citation omitted). Along with the complaint, we may also

consider documents incorporated into the complaint by

reference and matters of which we may take judicial notice.

Webb v. Trader Joe’s Co., 999 F.3d 1196, 1201 (9th Cir.

2021). “Judgment on the pleadings is properly granted when

there is no issue of material fact in dispute, and the moving

party is entitled to judgment as a matter of law.” Fleming,

581 F.3d at 925.

DISCUSSION

I.

We first explain why this case is not moot even though

the Policy has been rescinded. “The test for mootness of an

appeal is whether the appellate court can give the [plaintiff]

any effective relief in the event that it decides the matter on

the merits in his favor. If it can grant such relief, the matter

is not moot.” Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.

1986) (emphasis added). In the context of injunctive relief,

a case is not moot if the court is able to “undo” the effects of

14 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

the alleged illegal action. Id.; see, e.g., id. (“The question

[of mootness] thus becomes whether we can now give

[plaintiff] effective relief which would ‘undo’ the effects of

the alleged retaliatory action . . . .”).

The SAC seeks “injunctive relief restraining [the

LAUSD] from enforcing the [Policy]” and “other and further

relief as the Court may deem just and proper.” The SAC also

alleges that one of the individual Plaintiffs was terminated

from employment by the LAUSD for refusing to be

vaccinated and another was “separated from his employment

with LAUSD” after objecting to being vaccinated. There is

no suggestion that these individuals have been reinstated, 6

and so construing these allegations in Plaintiffs’ favor, see

Fleming, 581 F.3d at 925, we accept that these individuals

remain terminated from their original positions.

Given the SAC’s broad request for any proper injunctive

relief, along with the allegations that individual Plaintiffs

have been terminated under the Policy and have not been

reinstated to their prior positions, the SAC fairly

encompasses a request for reinstatement. See Garcia, 805

F.2d at 1402–04 (noting that reinstatement to a prior position

can be a proper injunctive remedy). Because reinstatement

would undo some effects of the alleged illegal action—the

LAUSD’s enforcement of the Policy—a court could grant

effective relief despite the Policy’s rescission. 7 Thus, this

6

Indeed, during en banc oral argument, Plaintiffs’ counsel represented

that at least one individual remains terminated from his original full-time

position. Oral Arg. at 1:47–2:12.

7

During en banc oral argument, Plaintiffs’ counsel confirmed that if the

case were remanded, Plaintiffs would explicitly seek reinstatement for

all the individual Plaintiffs who have not been reinstated to their former

positions. Oral Arg. at 52:14–52:25.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 15

case is not moot. 8 See id. at 1402–03 (holding, in an action

seeking an injunction, that the case was not moot because the

court could order reinstatement of the plaintiff to his prior

position); see also Norris v. Stanley, 73 F.4th 431, 433 n.1

(6th Cir. 2023) (holding, in similar circumstances, that the

case was not moot despite rescission of the vaccine policy at

issue because, among other reasons, there was no “indication

that [the university] ha[d] undone any of the negative

employment actions faced by [some of the plaintiffs], so the

harm plaintiffs faced ha[d] not been removed”), cert. denied,

144 S. Ct. 1353 (2024).

Our precedent supports that this case is not moot. In

Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059

(9th Cir. 2002), the plaintiffs sought an injunction to stop a

timber sale on national forest land. Id. at 1064–65.

Although the timber sale had been completed, we held that

the case was not moot because the alleged “harm to old

growth species may yet be remedied by any number of

mitigation strategies.” Id. at 1066. Significantly, we held

that such mitigation measures were fairly requested in the

complaint because “[i]n addition to an injunction, [the

plaintiffs’] complaint request[ed] ‘such further relief as may

8

For this reason, the LAUSD’s motion to dismiss is DENIED, Dkt. No.

49, and we need not (and do not) decide whether the voluntary cessation

exception to mootness applies. We also need not address whether our

recent decision in Kohn v. State Bar of California, 87 F.4th 1021 (9th

Cir. 2023) (en banc), cert. denied, 144 S. Ct. 1465 (2024), would permit

Plaintiffs to seek damages against the LAUSD. See Health Freedom,

104 F.4th at 726–27 (R. Nelson, J., concurring) (opining that Kohn may

conflict with our precedent holding that California school districts have

sovereign immunity under the Eleventh Amendment); id. at 727 n.2 (R.

Nelson, J., concurring) (“If LAUSD does not have sovereign immunity,

Plaintiffs may be able to amend to raise a monetary claim, which would

be another reason this case is not moot.”).

16 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

be necessary and appropriate to avoid further irreparable

harm.’” Id. In so holding, we noted that our prior case law

had recognized that we “may construe such requests for

[other appropriate] relief ‘broadly to avoid mootness.’” Id.

(quoting Headwaters, Inc. v. Bureau of Land Mgmt., 893

F.2d 1012, 1015 n.6 (9th Cir. 1989)); see also Oregon Nat.

Desert Ass’n v. U.S. Forest Serv., 957 F.3d 1024, 1032 n.7

(9th Cir. 2020) (explaining that, even though the complaint

“ask[ed] for injunctive relief only with respect to claims that

[were] not on appeal,” “we c[ould] consider further

injunctive relief in deciding whether th[e] appeal [wa]s

moot” because the complaint “also request[ed] ‘any such

further relief as requested by the Plaintiffs or as this Court

deems just and proper’” (citing Neighbors of Cuddy

Mountain, 303 F.3d at 1066)). 9

9

Judge Owens’s dissent argues that Neighbors of Cuddy Mountain’s

mootness rationale should be limited to “the narrow context of [National

Forest Management Act] and [National Environmental Policy Act]

violations.” Owens Dissent at 33. But we do not read Neighbors of

Cuddy Mountain as suggesting such a limitation. See 303 F.3d at 1065–

66. Indeed, in Neighbors of Cuddy Mountain, our mootness analysis

derived from the generally applicable and longstanding principle that “a

case is moot only where no effective relief for the alleged violation can

be given.” Id. at 1065; see also Garcia, 805 F.2d at 1402 (noting that

“[t]he test for mootness of an appeal”—“whether the appellate court can

give the appellant any effective relief in the event that it decides the

matter on the merits in his favor”—“goes back at least to” the Supreme

Court’s decision in Mills v. Green, 159 U.S. 651 (1895)).

We also note that our conclusion that this case is not moot is consistent

with Z Channel Limited Partnership v. Home Box Office, Inc., 931 F.2d

1338 (9th Cir. 1991). Federal Rule of Civil Procedure 54(c) provides

that a final judgment “should grant the relief to which each party is

entitled, even if the party has not demanded that relief in its pleadings.”

In Z Channel, “[t]he only relief expressly requested [in the

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 17

Contrary to Judge Owens’s suggestion in his dissent,

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997), does not undermine our conclusion that this case is

not moot. In Arizonans for Official English, the Supreme

Court noted that we had held that the case was not moot

because the plaintiff’s broad request for “other relief” could

encompass a request for nominal damages. Id. at 60 (quoting

Yniguez v. Arizona, 975 F.2d 646, 647 n.1 (9th Cir. 1992)

(per curiam)). The Supreme Court reversed that holding—

but not because we relied on the broad request for other

relief. Rather, the Supreme Court reversed because it would

have been impossible for the plaintiff there to seek nominal

damages against the state under 42 U.S.C. § 1983. Id. at 69

(“[T]he claim for relief the Ninth Circuit found sufficient to

overcome mootness was nonexistent [because] . . . § 1983

creates no remedy against a State.” (emphasis added)). But

here, reinstatement of the individual Plaintiffs to their

original positions is not impossible. See Doe v. Lawrence

Livermore Nat’l Lab’y, 131 F.3d 836, 839–42 (9th Cir.

1997) (holding that a request for reinstatement of

employment is a request for prospective injunctive relief that

complaint] . . . was declaratory and injunctive relief,” and such relief had

become “clearly moot” on appeal. 931 F.2d at 1340. Applying Rule

54(c), we held that the unavailability of declaratory and injunctive relief

did not moot the case because, even though the plaintiff had not

expressly requested relief in the form of damages in its complaint, a court

could nonetheless award damages as a form of relief. Id. at 1340–41;

see also Walden v. Bodley, 39 U.S. (14 Pet.) 156, 164 (1840) (“Under [a]

general prayer for relief, the [c]ourt [in equity] will often extend relief

beyond the specific prayer, and not exactly in accordance with it.”).

18 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

falls within the Ex parte Young exception to Eleventh

Amendment immunity). 10

II.

A.

The Due Process Clause of the Fourteenth Amendment

includes “a substantive component that protects certain

individual liberties from state interference.” Mullins v.

Oregon, 57 F.3d 789, 793 (9th Cir. 1995). “Only those

10

Respectfully, we also disagree with Judge Owens’s dissent because it

is based on the incorrect premise that our holding rests only on the SAC’s

broad request for relief. Owens Dissent at 30–31. We also see no

violation of the party presentation rule. See United States v. Sineneng-

Smith, 590 U.S. 371, 375 (2020) (“In our adversarial system of

adjudication, we follow the principle of party presentation.”). As

previously explained, Plaintiffs themselves fairly raised a request for

reinstatement in the SAC.

“We have noted in cases involving questions of mootness that ordinary

discretionary principles of waiver and forfeiture can affect whether

certain relief is available.” United States v. Yepez, 108 F.4th 1093, 1099

n.1 (9th Cir. 2024); see Bain v. Cal. Tchrs. Ass’n, 891 F.3d 1206, 1212

(9th Cir. 2018) (holding that the plaintiffs’ “eleventh hour” request for

damages was an attempt “to transform their lawsuit from a request for

prospective equitable relief into a plea for money damages to remedy

past wrongs”); Seven Words LLC v. Network Sols., 260 F.3d 1089, 1095

(9th Cir. 2001) (holding that the plaintiff’s belated request for damages

had been “effectively disavowed . . . for tactical reasons”). But Plaintiffs

here have neither waived nor forfeited their request for reinstatement to

their prior positions. Throughout this case (which was dismissed at the

pleadings stage), the gravamen of the relief sought by Plaintiffs has been

prospective injunctive relief to permit them to continue to work for the

LAUSD without also having to comply with the Policy. For this reason,

we also believe that the out-of-circuit and rescinded-COVID-19-policy

cases relied upon by Judge Owens are inapt. See Owens Dissent at 31–

32, 31 n.1. In none of those cases did the courts find that they could still

grant effective injunctive relief consistent with the gravamen of the

injunctive relief sought by the respective plaintiffs all along.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 19

aspects of liberty that we as a society traditionally have

protected as fundamental are included within the substantive

protection of the Due Process Clause.” Id. When no

fundamental liberty interest is implicated, a legislative act

“must satisfy only the deferential rational basis standard of

review.” Erotic Serv. Provider Legal Educ. & Rsch. Project

v. Gascon, 880 F.3d 450, 455 (9th Cir.), amended by 881

F.3d 792 (9th Cir. 2018). Under that standard, we “merely

look to see whether the government could have had a

legitimate reason for acting as it did.” Dittman v. California,

191 F.3d 1020, 1031 (9th Cir. 1999) (quoting Halverson v.

Skagit County, 42 F.3d 1257, 1262 (9th Cir. 1994), amended

on denial of reh’g (9th Cir. Feb. 9, 1995)). “Rational basis

review is highly deferential to the government, allowing any

conceivable rational basis to suffice.” Erotic Serv. Provider,

880 F.3d at 457.

Like all our sister circuits that have considered

substantive due process challenges to COVID-19 vaccine

mandates, we hold that Jacobson controls our analysis. See

We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293–94

(2d Cir.) (per curiam) (applying Jacobson to plaintiffs’ claim

that a COVID-19 vaccine mandate “violate[d] their

fundamental rights to privacy, medical freedom, and bodily

autonomy under the Fourteenth Amendment”), clarified, 17

F.4th 368 (2d Cir. 2021); Child.’s Health Def., Inc. v.

Rutgers, The State Univ. of N.J., 93 F.4th 66 (3d Cir.)

(holding that “Jacobson control[led],” id. at 80, plaintiffs’

claim that a COVID-19 vaccine mandate “violated their

substantive due process rights under the Fourteenth

Amendment,” id. at 78), cert. denied, 144 S. Ct. 2688

(2024); Norris, 73 F.4th at 435 (applying Jacobson to

plaintiffs’ substantive due process challenge to a COVID-19

vaccine mandate); Klaassen v. Trs. of Ind. Univ., 7 F.4th

20 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

592, 593 (7th Cir. 2021) (holding that, because the court

“must apply the law established by the Supreme Court,”

Jacobson applied to plaintiffs’ substantive due process claim

challenging a COVID-19 vaccine mandate); see also

Antunes v. Becerra, No. 22-2190, 2024 WL 511038, at *1

(4th Cir. Feb. 9, 2024) (per curiam) (adopting the district

court’s decision in Antunes v. Rector & Visitors of Univ. of

Va., 627 F. Supp. 3d 553 (W.D. Va. 2022), which applied

Jacobson in rejecting plaintiff’s claim that a COVID-19

vaccine mandate violated her due process right to refuse

unwanted medical treatment, id. at 564–65), cert. denied,

145 S. Ct. 159 (2024); Brox v. Hole, 83 F.4th 87, 100–01 (1st

Cir. 2023) (applying Jacobson’s rational basis test to a due

process challenge to a COVID-19 vaccination mandate

(based on plaintiffs’ failure to challenge the application of

the rational basis test) and holding that the mandate easily

satisfied rational basis review).

In Jacobson, the Supreme Court considered a

substantive due process challenge to a smallpox vaccination

requirement for all adult residents of Cambridge,

Massachusetts, with criminal penalties. 197 U.S. at 12–14.

The Massachusetts legislature provided that certain

municipalities could require vaccinations, if the board of

health of a municipality determined that “in its opinion, it

[wa]s necessary for the public health or safety . . . [to] require

and enforce the vaccination and revaccination of all [its]

inhabitants.” Id. at 12. The Board of Health of the City of

Cambridge adopted the following regulation in the face of a

health emergency:

Whereas, smallpox has been prevalent to

some extent in the city of Cambridge, and

still continues to increase; and whereas, it is

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 21

necessary for the speedy extermination of the

disease that all persons not protected by

vaccination should be vaccinated; and

whereas, in the opinion of the board, the

public health and safety require the

vaccination or revaccination of all the

inhabitants of Cambridge; be it ordered, that

all the inhabitants of the city who have not

been successfully vaccinated since March

1st, 1897, be vaccinated or revaccinated.

Id. at 12–13.

Jacobson, who had been convicted for refusing to get

vaccinated for smallpox in violation of the Cambridge

regulation, id. at 14, argued that the statute was “hostile to

the inherent right of every freeman to care for his own body

and health in such way as to him seems best,” id. at 26. He

claimed, among other things, that the vaccine resulted in

“injurious or dangerous effects.” Id. at 23.

The Court first explained that state legislatures and other

policymakers have the authority to enforce “reasonable

[laws] . . . as will protect the public health and the public

safety,” like vaccination requirements. Id. at 25. But

because such laws remain subject to the Constitution of the

United States, the Court next considered whether the statute

violated a right to bodily integrity secured by the

Constitution. Id. at 25–26; see also Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 24 (2020) (per curiam)

(Gorsuch, J., concurring) (“Mr. Jacobson claimed that he

possessed an implied ‘substantive due process’ right to

‘bodily integrity’ that emanated from the Fourteenth

Amendment . . . .”). The Court determined that the

Constitution secured no fundamental right to be free from

22 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

vaccine requirements imposed to protect the safety and

health of the community. Jacobson, 197 U.S. at 26–27. And

the Court stressed that whether a vaccine requirement would

protect the safety and health of the community is a matter for

the legislature or policymakers, not a question for a court or

jury. Id. at 30 (“It is no part of the function of a court or a

jury to determine which one of two modes was likely to be

the most effective for the protection of the public against

disease. That was for the legislative department to determine

in the light of all the information it had or could obtain.”).

Having determined that Jacobson had no fundamental

right to refuse the vaccination, the Court essentially applied

rational basis review to his due process challenge. Id. at 31

(“[But] if a statute purporting to have been enacted to protect

the public health, the public morals, or the public safety, has

no real or substantial relation to those objects, or is, beyond

all question, a plain, palpable invasion of rights secured by

the fundamental law, it is the duty of the courts to so adjudge,

and thereby give effect to the Constitution.”); see also

Roman Cath. Diocese, 592 U.S. at 23 (Gorsuch, J.,

concurring) (“Although Jacobson pre-dated the modern tiers

of scrutiny, this Court essentially applied rational basis

review to Henning Jacobson’s challenge . . . .”). Because the

state legislature and the Cambridge Board of Health could

have reasonably concluded that requiring adults to get the

smallpox vaccine would protect the public’s health and

safety, the Court held that it survived rational basis review.

Jacobson, 197 U.S. at 30–31 (explaining that the legislature

could have found that the vaccine requirement “was likely to

be the most effective for the protection of the public against

disease,” id. at 30); id. at 38 (“[The Court] do[es] not

perceive that this [regulation] has invaded any right secured

by the Federal Constitution.”).

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 23

Jacobson holds that the constitutionality of a vaccine

mandate, like the Policy here, turns on what reasonable

legislative and executive decisionmakers could have

rationally concluded about whether a vaccine protects the

public’s health and safety, not whether a vaccine actually

provides immunity to or prevents transmission of a disease.

Whether a vaccine protects the public’s health and safety is

committed to policymakers, not a court or a jury. Further,

alleged scientific uncertainty over a vaccine’s efficacy is

irrelevant under Jacobson. Jacobson simply does not allow

debate in the courts over whether a mandated vaccine

prevents the spread of disease. Jacobson makes clear that it

is up to the political branches, within the parameters of

rational basis review, to decide whether a vaccine effectively

protects public health and safety.

Jacobson is materially indistinguishable from this case.

Here, as in Jacobson, we are presented with a bodily

integrity substantive due process challenge to a vaccine

mandate imposed to protect the public’s health and safety in

response to a health emergency. Thus, under Jacobson, we

must apply rational basis review.

The Policy easily survives such review because (even

assuming the truth of Plaintiffs’ allegations) it was more than

reasonable for the LAUSD to conclude that COVID-19

vaccines would protect the health and safety of its employees

and students. The SAC concedes that COVID-19 vaccines

“lessen the severity of symptoms for individuals who receive

them.” From this, the LAUSD could have reasonably

determined that the vaccines would protect the health of its

employees. And as discussed above, the LAUSD could have

reasonably concluded, based on information in the

documents incorporated by reference into the SAC, that

COVID-19 vaccines would protect the health and safety of

24 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

its students and employees. In fact, the CDC reported that

COVID-19 vaccines “are highly effective at protecting

vaccinated people against symptomatic and severe COVID-

19,” and “[f]ully vaccinated people are less likely to become

infected” and “less likely to get and spread SARS-CoV-2.”

Interim Public Health Recommendations for Fully

Vaccinated People, CDC (July 28, 2021),

https://stacks.cdc.gov/view/cdc/108355

[https://perma.cc/AMW8-KH3Z]. The CDC also

recommended that “everyone 5 years and older protect

themselves from COVID-19 by getting fully vaccinated.”

Omicron Variant: What You Need to Know, CDC (Dec. 9,

2021), https://stacks.cdc.gov/view/cdc/112430

[https://perma.cc/B4EG-5QMR].

B.

We reject Plaintiffs’ attempt to limit Jacobson to only

those vaccines that prevent the spread of a disease and

provide immunity. Jacobson required no such findings. The

Court dealt with arguments very similar to Plaintiffs’ about

the nature of vaccines, including through offers of proof

made by Jacobson on which he sought to introduce expert

testimony:

Looking at the propositions embodied in

the defendant’s rejected offers of proof, it is

clear that they are more formidable by their

number than by their inherent value. Those

offers in the main seem to have had no

purpose except to state the general theory of

those of the medical profession who attach

little or no value to vaccination as a means of

preventing the spread of smallpox, or who

think that vaccination causes other diseases

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 25

of the body. What everybody knows the

court must know, and therefore the state court

judicially knew, as this court knows, that an

opposite theory accords with the common

belief, and is maintained by high medical

authority. We must assume that, when the

statute in question was passed, the legislature

of Massachusetts was not unaware of these

opposing theories, and was compelled, of

necessity, to choose between them. It was not

compelled to commit a matter involving the

public health and safety to the final decision

of a court or jury. It is no part of the function

of a court or a jury to determine which one of

two modes was likely to be the most effective

for the protection of the public against

disease. That was for the legislative

department to determine in the light of all the

information it had or could obtain. It could

not properly abdicate its function to guard the

public health and safety. The state legislature

proceeded upon the theory which recognized

vaccination as at least an effective, if not the

best-known, way in which to meet and

suppress the evils of a smallpox epidemic that

imperiled an entire population. Upon what

sound principles as to the relations existing

between the different departments of

government can the court review this action

of the legislature? If there is any such power

in the judiciary to review legislative action in

respect of a matter affecting the general

welfare, it can only be when that which the

26 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

legislature has done comes within the rule

that, if a statute purporting to have been

enacted to protect the public health, the

public morals, or the public safety, has no real

or substantial relation to those objects, or is,

beyond all question, a plain, palpable

invasion of rights secured by the fundamental

law, it is the duty of the courts to so adjudge,

and thereby give effect to the Constitution.

Whatever may be thought of the

expediency of this statute, it cannot be

affirmed to be, beyond question, in palpable

conflict with the Constitution. Nor, in view

of the methods employed to stamp out the

disease of smallpox, can anyone confidently

assert that the means prescribed by the state

to that end has no real or substantial relation

to the protection of the public health and the

public safety.

197 U.S. at 30–31 (citations omitted).

As this discussion demonstrates, the Court determined

that Jacobson’s claims about the smallpox vaccine—very

similar to Plaintiffs’ claims—were immaterial, given the

other evidence from which the legislature could have

reasonably concluded that the vaccine would likely protect

the health and safety of the public. 11 Jacobson thus applies

11

For this reason, we respectfully disagree with Judge Lee’s attempt to

limit Jacobson “to apply only if a vaccine prevents transmission and

contraction of a disease.” Lee Partial Dissent at 35. By rejecting

Jacobson’s argument—supported by offers of proof—that the smallpox

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 27

to vaccination requirements regardless of whether such

vaccines actually provide immunity and prevent the spread

of disease or whether they provide no immunity and merely

render COVID-19 less dangerous to those who contract it,

so long as policymakers could reasonably conclude that the

vaccines would protect the public’s health and safety. 12

We also reject Plaintiffs’ argument that a heightened

standard of review applies based on a more recent line of

cases that, according to Plaintiffs, recognize a fundamental

right to refuse unwanted medical treatment. Plaintiffs

primarily rely on Cruzan ex rel. Cruzan v. Director,

Missouri Department of Health, 497 U.S. 261 (1990)

(stating that “a competent person has a constitutionally

protected liberty interest in refusing unwanted medical

treatment,” id. at 278), and Washington v. Glucksberg, 521

U.S. 702 (1997) (noting that the Court “ha[s] also assumed,

and strongly suggested, that the Due Process Clause protects

the traditional right to refuse unwanted lifesaving medical

treatment,” id. at 720 (citing Cruzan, 497 U.S. at 278–79)).

vaccine did not prevent the spread of the disease, the Court necessarily

held that whether the vaccine actually prevented the spread of smallpox

did not matter, given the contrary evidence from which policymakers

could reasonably conclude that the vaccine would protect the public’s

health and safety. See Jacobson, 197 U.S. at 30–31; see also Child.’s

Health Def., 93 F.4th at 79 (“Jacobson did not turn on the longevity of

the vaccine or consensus regarding its efficacy.”). Jacobson cannot be

cabined to circumstances that the Court found immaterial.

12

Even if the SAC plausibly alleged that COVID-19 vaccines do not

effectively provide immunity or prevent the spread of COVID-19 and

that they only reduce symptoms for the recipient, that would be

irrelevant. What matters is whether policymakers could reasonably

conclude that vaccination requirements are necessary to protect public

health and safety. Jacobson, 197 U.S. at 30–31.

28 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

Whatever the reach of these cases, they did not overrule

Jacobson. 13 See We The Patriots USA, 17 F.4th at 293 n.35

(“Jacobson remains binding precedent.”); Norris, 73 F.4th

at 436 (“[A]bsent any indication from the [Supreme] Court

that Jacobson is to be overruled or limited, [the court is]

bound to apply that decision to reject plaintiffs’ arguments

here.”). Indeed, even Plaintiffs do not go so far as to claim

that Jacobson is no longer good law. As Jacobson remains

binding and squarely governs this case, we must apply it.

III.

Plaintiffs concede, and we agree, that their equal

protection claim is subject to rational basis review. See

Hooks v. Clark Cnty. Sch. Dist., 228 F.3d 1036, 1041 (9th

Cir. 2000) (“To withstand [a due process or equal protection

challenge under the] Fourteenth Amendment . . . , a

regulation must bear only a rational relation to a legitimate

13

Moreover, these cases do not address the circumstances addressed in

Jacobson: a due process challenge to a vaccine policy imposed to protect

the public’s health and safety. So we do not read these cases as

undermining Jacobson. But even if we did, we would still need to apply

Jacobson. See In re Twelve Grand Jury Subpoenas, 908 F.3d 525, 529

(9th Cir. 2018) (per curiam) (“Where Supreme Court precedent ‘has

direct application in a case,’ the Supreme Court has instructed ‘the Court

of Appeals [to] follow the case which directly controls,’ even if it

‘appears to rest on reasons rejected in some other line of decisions,’ and

thereby to ‘leav[e] to th[e] Court the prerogative of overruling its own

decisions.’” (alterations in original) (quoting Agostini v. Felton, 521 U.S.

203, 237 (1997))). We thus agree with our sister circuits that, despite

Cruzan and its progeny, Jacobson continues to control in cases

challenging COVID-19 vaccination policies. See We The Patriots USA,

17 F.4th at 293–94 (rejecting plaintiffs’ argument that Jacobson did not

apply because Cruzan and its progeny recognized a fundamental right to

refuse medical treatment); Child.’s Health Def., 93 F.4th at 79–80

(same); Norris, 73 F.4th at 437 (same).

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 29

governmental purpose, unless the regulation implicates a

fundamental right or an inherently suspect classification.”).

Because we hold above that the Policy is rationally related

to the LAUSD’s legitimate interest in protecting the health

and safety of its employees and students, Plaintiffs’ equal

protection claim fails.

CONCLUSION

Although the LAUSD has rescinded the Policy, this case

is not moot. Given the SAC’s broad request for any proper

injunctive relief along with its allegations that individual

Plaintiffs were terminated under the Policy, the SAC fairly

encompasses a request for reinstatement of the individual

Plaintiffs who have not been restored to their prior positions.

On the merits, Jacobson is binding and controls, and thus

rational basis review applies to Plaintiffs’ substantive due

process claim. Even construing Plaintiffs’ allegations in

their favor, the Policy survives such review, as the LAUSD

could have reasonably concluded that COVID-19 vaccines

would protect the health and safety of its employees and

students. For this same reason, Plaintiffs’ equal protection

claim fails under rational basis review. We therefore affirm

the district court’s order granting the LAUSD’s motion for

judgment on the pleadings.

AFFIRMED.

30 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

OWENS, Circuit Judge, dissenting.

Plaintiffs brought this suit to obtain “injunctive relief

restraining Defendants from enforcing” their vaccine policy.

As Judge Hawkins correctly concluded in his dissent from

the panel decision, this case is moot, as “there is no longer

any policy for the court to enjoin or declare unlawful.”

Health Freedom Def. Fund, Inc. v. Carvalho, 104 F.4th 715,

732 (9th Cir. 2024) (Hawkins, J., dissenting), vacated and

reh’g en banc granted, 127 F.4th 750 (9th Cir. 2025).

Nothing in the record (or the world) even hints at the

possibility that the Los Angeles Unified School District

would resurrect its COVID-19 vaccine mandate, which has

been dead for nearly two years. The majority does not

dispute this reality. We lack Article III jurisdiction and must

dismiss this case. See Brach v. Newsom, 38 F.4th 6, 12 (9th

Cir. 2022) (en banc) (dismissing a challenge to a pandemic-

related restriction as moot in line with “the numerous other

circuit courts across the country” that have done the same).

The majority first attempts to skirt the mootness problem

by asserting that the complaint “fairly encompasses a request

for reinstatement,” leaning on a boilerplate catchall request

for “other and further relief as the Court may deem just and

proper.” Maj. Op. at 14. Yet when unanimously reversing

our court on mootness grounds, the Supreme Court warned

that new forms of relief, “extracted late in the day from [a]

general prayer for relief and asserted solely to avoid

otherwise certain mootness, bore close inspection.”

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997)

(rejecting this court’s theory that a live controversy existed

where the “complaint did not expressly request nominal

damages” but “it did request ‘all other relief that the Court

deems just and proper’” (citation omitted)). Indeed, the

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 31

Court has distinguished cases where a plaintiff “has

presented a claim” for the type of relief that “ensure[s] a live

controversy,” Mission Prod. Holdings v. Tempnology, LLC,

587 U.S. 370, 377 (2019), from those where a plaintiff “ha[s]

not prayed for” such relief and thus “no longer ha[s] a legally

cognizable interest in the result of th[e] case,” Murphy v.

Hunt, 455 U.S. 478, 491 (1982); cf. United States v.

Sineneng-Smith, 590 U.S. 371, 380 (2020) (unanimously

reversing this court and applying the party presentation

principle to require that cases be “shaped by the parties,” not

the court).

Not surprisingly, our sister circuits routinely reject

attempts to grow a magic Article III jurisdiction beanstalk

from boilerplate language. For example, the First Circuit, in

a nearly identical rescinded COVID-19 mandate case, cited

Arizonans for Official English to hold that “the students’

request for ‘any other relief [the] Court deems proper’

cannot operate to save their otherwise moot action.” Harris

v. Univ. of Mass., 43 F.4th 187, 193 (1st Cir. 2022). 1 The

1

See, e.g., Thomas R.W. v. Mass. Dep’t of Educ., 130 F.3d 477, 480 (1st

Cir. 1997) (holding that a “general prayer for relief” cannot preserve a

request for damages to avoid mootness, citing Arizonans for Official

English); Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 141 (2d

Cir. 1994) (declining to “read a damages claim into the Complaint’s

boilerplate prayer” for relief when there was “absolutely no specific

mention in [the Complaint] of nominal damages” (citation omitted));

Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 90 (2d

Cir. 2005) (applying Arizonans for Official English to reject that a

“general claim for ‘other such relief as the Court deems appropriate’ is

sufficiently expansive to include” the only relief that would render the

case not moot); WildEarth Guardians v. Pub. Serv. Co., 690 F.3d 1174,

1191 (10th Cir. 2012) (holding that “[a] broad request for ‘other’ relief

cannot save [a] complaint” from mootness); Harris v. City of Houston,

32 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

majority attempts to distinguish the many contrary

precedents from other circuits by asserting that, unlike in

those cases, relief consistent with the “gravamen” of

Plaintiffs’ requested injunction—even if not expressly

sought—can still be granted. Maj. Op. at 18 n.10. But the

mootness inquiry hinges on the relief “specific[ally]

mention[ed]” by the parties, not on the court’s post hoc

characterization of the case’s supposed essence. Fox v. Bd.

of Trs. of State Univ. of N.Y., 42 F.3d 135, 141 (2d Cir.

1994). Blindly embracing a never briefed or argued theory

that the Supreme Court and our sister circuits have explicitly

rejected is more Inspector Clouseau than “close inspection.”

To side shuffle this constitutional black hole, the

majority departs from the many analogous challenges to

rescinded COVID-19 policies that have been dismissed as

moot, see Brach, 38 F.4th at 12 n.3 (collecting cases), and

instead relies on Neighbors of Cuddy Mountain v. Alexander,

303 F.3d 1059 (9th Cir. 2002), which concerned alleged

violations of the National Forest Management Act (NFMA)

and the National Environmental Policy Act (NEPA). Maj.

Op. at 15-16. 2 In that case, plaintiffs sought to enjoin a

timber sale on national forest land or any other relief that

“may be necessary and appropriate to avoid further

irreparable harm” from the sale. Id. at 1066. Even after

151 F.3d 186, 191 (5th Cir. 1998) (declining to “conjure up relief” by

“‘read[ing] into’ [the] complaint additional requests” that would

manufacture a live controversy).

2

The majority also cites Norris v. Stanley, 73 F.4th 431 (6th Cir. 2023),

cert. denied, 144 S. Ct. 1353 (2024)—another pandemic-related case that

it claims involves “similar circumstances” and was not moot. Maj. Op.

at 15. Unlike here, however, the plaintiffs in Norris specifically “sought

nominal damages for the alleged violations of their constitutional rights.”

Id. at 433 n.1.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 33

logging of the timber concluded, we held over a dissent that

the case was not moot because further environmental harm

from the sale “may yet be remedied by any number of

mitigation strategies,” which were fairly encompassed in the

requested relief. Id.

The parties never cited Neighbors of Cuddy Mountain

nor its underlying theory in their many briefs submitted to

this court, nor did the original panel or dissent. And despite

the majority’s claim that Neighbors of Cuddy Mountain

derived from longstanding mootness principles, Maj. Op. at

16 n.9, no published decision in this circuit—or any other—

has ever relied on Neighbors of Cuddy Mountain’s mootness

rationale outside the narrow context of NFMA and NEPA

violations. That collective silence speaks for itself: There is

simply no basis to extend Neighbors of Cuddy Mountain’s

mootness holding beyond its specific environmental context

to the claims presented here. Compare Feldman v. Bomar,

518 F.3d 637, 642 (9th Cir. 2008) (citing Neighbors of

Cuddy Mountain and similar cases to illustrate this court’s

recognition of “‘live’ controversies in environmental cases

even after the contested government projects were

complete” (emphasis added)), with Brach, 38 F.4th at 11

(holding that, where plaintiffs sue to enjoin a pandemic

policy but the policy no longer remains, the plaintiffs “have

gotten everything they asked for” and the “actual

controversy has evaporated,” presenting a “classic case” of

mootness). 3

3

The majority’s tepid reliance on Z Channel Limited Partnership v.

Home Box Office, Inc., 931 F.2d 1338 (9th Cir. 1991)—a nearly thirty-

five-year-old case that was also never cited by the parties nor the original

panel—is even less persuasive. Maj. Op. at 16 n.9. No published

34 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

Because neither of the majority’s last-minute mootness

rationales survive “close inspection,” Arizonans for Off.

Eng., 520 U.S. at 71, I respectfully dissent for the reasons

stated by Judge Hawkins.

LEE, Circuit Judge, joined by COLLINS, Circuit Judge,

dissenting in part.

The majority’s opinion comes perilously close to giving

the government carte blanche to require a vaccine or even

medical treatment against people’s will so long as it

asserts—even if incorrectly—that it would promote “public

health and safety.” But the many mistakes and missteps by

our government and the scientific establishment over the

past five years counsel caution: Their errors underscore the

importance of carefully evaluating the sort of sweeping

claims of public-health authority asserted by the Los

Angeles Unified School District (“LAUSD”) here. Faithful

adherence to Supreme Court precedent confirms that we

decision from this circuit in nearly three decades has relied on Z Channel

to overcome a mootness challenge based on hypothetical relief that no

party specifically sought. And for good reason: Z Channel is a textbook

example of overreach, with the majority “[d]efying a clear rule of

procedure, creating an inter-circuit conflict and resurrecting a legal

theory long ago abandoned by the parties” to bring the case “back from

the dead.” 931 F.2d at 1346, 1349 (Kozinski, J., dissenting); see also

Sineneng-Smith, 590 U.S. at 380 (cautioning against appellate courts

“interject[ing]” themselves into cases); NAACP v. U.S. Sugar Corp., 84

F.3d 1432, 1438 (D.C. Cir. 1996) (citing the Z Channel dissent); Seven

Words LLC v. Network Sols., 260 F.3d 1089, 1095–97 (9th Cir. 2001)

(declining to apply Z Channel to overcome a mootness challenge); Bain

v. Cal. Tchrs. Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018) (declining to

“transform” the requested relief “at the eleventh hour” to avoid

mootness, citing Seven Words and Arizonans for Official English).

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 35

should not blindly accept the mere say-so of the government.

We thus should not affirm the dismissal of this lawsuit

challenging LAUSD’s COVID-19 vaccine mandate—

without permitting the plaintiffs to offer evidence to rebut

the government officials’ far-reaching claims. 1

Contrary to the majority, I read the Supreme Court’s

decision in Jacobson v. Massachusetts—which upheld a

smallpox vaccine mandate—to apply only if a vaccine

prevents transmission and contraction of a disease. 197 U.S.

11 (1905). The plaintiffs here have plausibly claimed—at

least at the pleading stage where we must accept the truth of

the allegations—that the COVID-19 vaccine mitigates

serious symptoms but does not “prevent transmission or

contraction of COVID-19.” And if that is true, then

Jacobson’s rational basis review does not apply, and we

must examine the vaccine mandate under a more stringent

standard. Ultimately, the plaintiffs may be wrong about the

COVID-19 vaccine, but they should be given a chance to

challenge the government’s assertions about it.

I respectfully dissent in part.

* * * *

When the mRNA-based COVID-19 vaccines were first

announced in late 2020, pharmaceutical companies touted

clinical trials that they claimed showed an efficacy rate of

over 90 percent. 2 As scientists contended then, these

1

I agree with the majority that this appeal is not moot.

2

Pfizer and BioNTech Announce Vaccine Candidate Against COVID-

19 Achieved Success in First Interim Analysis from Phase 3 Study,

Pfizer, https://www.pfizer.com/news/press-release/press-release-

detail/pfizer-and-biontech-announce-vaccine-candidate-against (Nov. 9,

36 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

vaccines would “protect individuals from infection and

transmission.” 3

Based in part on these trial results, federal, state and local

governments acted swiftly to impose vaccine mandates. The

United States government required federal employees,

government contractors, and millions of private sector

employees to be vaccinated. 4 Over 8,000 men and women

in uniform were discharged and severed from service for

their refusal to be vaccinated. 5 States also imposed their own

mandates. Even 18 months into the pandemic, California

Governor Gavin Newsom announced that he planned to

require schoolchildren to be vaccinated, despite scientific

evidence that showed young children face extremely low

2020); Moderna’s COVID-19 Vaccine Candidate Meets its Primary

Efficacy Endpoint in the First Interim Analysis of the Phase 3 COVE

Study, Moderna, https://investors.modernatx.com/news/news-

details/2020/Modernas-COVID-19-Vaccine-Candidate-Meets-its-

Primary-Efficacy-Endpoint-in-the-First-Interim-Analysis-of-the-Phase-

3-COVE-Study/default.aspx (Nov. 16, 2020).

3

Ali Pormohammad et al., Efficacy and Safety of COVID-19 Vaccines:

A Systematic Review and Meta-Analysis of Randomized Clinical Trials,

9 Vaccines 1, 15 (2021),

https://pmc.ncbi.nlm.nih.gov/articles/PMC8148145/.

4

See, e.g., Kathryn Watson et al., Biden announces COVID-19 vaccine

mandates that will affect 100 million Americans, CBS News (Sept. 10,

2021), https://www.cbsnews.com/live-updates/biden-covid-19-vaccine-

mandates-announcement/.

5

Fact Sheet: President Donald J. Trump Reinstates Service Members

Discharged for Refusing the COVID Vaccine, The White House,

https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-

donald-j-trump-reinstates-service-members-discharged-for-refusing-

the-covid-vaccine/ (Jan. 27, 2025).

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 37

health risks from COVID-19. 6 That proposed mandate

would have banned unvaccinated children from the

classroom and relegated them to online learning. And

relevant here, LAUSD issued a memorandum requiring all

employees to get vaccinated—or lose their jobs.

But it turned out that the government—and the scientific

establishment—were wrong about a lot of things. The

COVID-19 vaccines did not end up having an efficacy rate

of over 90 percent in real-life. People repeatedly caught

COVID-19, despite being vaccinated and “boosted.”

Indeed, repeat infections among the vaccinated became so

common that the phrase “breakthrough infection” entered

common parlance. Given this reality, the government

shifted its emphasis on why people should get vaccinated: It

was less about preventing transmission and contraction of

COVID-19 and more about mitigating serious symptoms.7

Even LAUSD in its brief before the three-judge panel

focused largely on the vaccine’s effect in lessening

symptoms, stating that “[t]he overwhelming consensus

amongst the nation’s leading health experts is that COVID-

6

California Becomes First State in Nation to Announce COVID-19

Vaccine Requirements for Schools, Governor Gavin Newsom,

https://www.gov.ca.gov/2021/10/01/california-becomes-first-state-in-

nation-to-announce-covid-19-vaccine-requirements-for-schools/ (last

visited May 28, 2025). California ultimately walked away from this

announced policy.

7

See Benefits of Getting Vaccinated, CDC,

https://www.cdc.gov/covid/vaccines/benefits.html#:~:text=Vaccination

%20is%20more%20reliable%20way,associated%20with%20COVID%

2D19%20infection., (Jan 13, 2025) (emphasizing that “Getting

vaccinated against COVID-19 has many benefits that are supported by

scientific studies. The COVID-19 vaccine helps protect you from severe

illness, hospitalization, and death.”).

38 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

19 vaccines are safe and effective in preventing serious

illness and death from this highly contagious virus.”

The plaintiffs here go further and contend that the

COVID-19 vaccine is not even a “traditional” vaccine that

prevents transmission or provides immunity. Rather, the

COVID-19 vaccines merely mitigate symptoms in a manner

more akin to a medical treatment than a vaccine. Thus,

according to the plaintiffs, the Supreme Court’s Jacobson v.

Massachusetts decision does not apply here. The district

court, for its part, held that the plaintiffs’ “distinction”

between “lessen[ing] the severity of the disease” and

“prevent[ing] contraction or transmission” was “misplaced”

and that Jacobson applies even if requiring the COVID-19

vaccines constitutes forced medical treatment. Health

Freedom Def. Fund v. Reilly, 2022 WL 5442479, at *5 (C.D.

Cal. Sept. 2, 2022).

The majority reads Jacobson broadly to empower the

government to impose any vaccine mandate so long as it

believes the mandate would “protect public health and

safety.” Maj. Op. 23. Under the majority’s reading, “alleged

scientific uncertainty over a vaccine’s efficacy is irrelevant

under Jacobson.” Id. In other words, if the government

believes a vaccine will protect “public health and safety,”

that is the end of the story. The majority adopts a sweeping

definition of “public health and safety” such that the

government can mandate a vaccine—and potentially any

medical treatment—if the required measure just “lessen[s]

the severity of symptoms,” whether or not it prevents

transmission and contraction of the disease. Id.

I disagree with the majority’s overly broad reading of

Jacobson. The Supreme Court upheld Massachusetts’

vaccine requirement against smallpox precisely because the

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 39

vaccine prevented the transmission and contraction of

smallpox. It emphasized this point repeatedly:

• The “principle of vaccination as a means

to prevent the spread of smallpox has

been enforced in many [S]tates.” 197

U.S. at 31–32 (emphasis added).

• “[V]accination strongly tends to prevent

the transmission or spread of this

disease.” Id. at 34 (quoting Viemeister v.

White, 179 N.Y. 235, 72 N.E. 97, 98–99

(1904) (emphasis added)).

• It is “common belief” that a vaccine has a

“decided tendency to prevent the spread

of this fearful disease.” Id. at 34

(emphasis added).

• Quarantine requirements were justified

because of “the danger of the spread of

the disease.” Id. at 29 (emphasis added).

To be sure, the Court in Jacobson noted that the

defendant had challenged the effectiveness of the smallpox

vaccine in limiting the spread of the disease. Id. at 23–24.

The majority opinion latches onto that language to argue that

it does not matter whether a vaccine limits transmission and

contraction of a disease; we must just defer to a state’s belief

that a vaccine will protect “public health and safety.” Maj.

Op. 23. But the Court did not hold that vaccines can be

required even if they do not prevent the transmission and

contraction of the disease.

Admittedly, it is somewhat difficult to parse this 120-

year-old case because it predates our tiers-of-scrutiny

40 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

analysis. But I read the Court’s opinion much more

narrowly than the majority does: If “everybody knows . . .

and therefore the [trial] court judicially knew, as th[e]

[C]ourt knows, that an opposite theory [about the public-

health efficacy of the smallpox vaccine] accords with the

common belief, and is maintained by high medical

authority,” Jacobson’s argument that this overwhelming

consensus was not unanimous does not amount to a viable

constitutional claim. Jacobson, 197 U.S. at 30. While it

acknowledged that some people shared Jacobson’s distinctly

unorthodox belief, the Court noted that it is “common belief”

that is “accepted by the mass of the people, as well as by

most members of the medical profession” that the smallpox

vaccine has the “decided tendency to prevent the spread” of

disease. Id. at 34 (quoting Viemeister’s upholding of a

smallpox vaccine mandate in New York); see also id. at 35

(“vaccination, as a means of protecting a community against

smallpox, finds strong support in the experience of this and

other countries”); id. at 37 (suggesting that there is “deep and

universal” belief in the “community” and “medical advisers”

about the vaccine’s efficacy). Jacobson then recited the

number of states—and countries ranging from Britain to

Denmark to Germany to Sweden—that have adopted

compulsory smallpox vaccination, underscoring the

common and almost universal belief that smallpox vaccines

prevent the spread of that disease. Id. at 31 n.1.

Our case is factually different from Jacobson. At the

pleading stage, we must accept as true the plaintiffs’ well-

pleaded allegation that the newly developed mRNA

COVID-19 vaccines do not effectively prevent the

transmission and contraction of COVID-19 and thus more

resemble medical treatments than the sort of robustly

validated smallpox vaccine at issue in Jacobson. Ashcroft v.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 41

Iqbal, 556 U.S. 662, 678 (2009). That allegation may

ultimately not bear out once the parties offer evidence, but

the plaintiffs’ theory appears plausible at this stage,

especially given the federal government’s focus on

mitigation of symptoms over prevention of transmission and

LAUSD’s failure in its brief to try to factually rebut that

claim. This means that Jacobson does not bar this suit—at

least for now.

The majority opinion suggests that Jacobson’s reference

to “public health and public safety” is so capacious that

merely “lessen[ing] the severity of symptoms” is enough to

justify a vaccine mandate. Maj. Op. 23. But nothing in

Jacobson hints that just mitigating symptoms alone can

count as “public health and public safety.” The entire thrust

of Jacobson is that “public health and public safety” means

protecting the mass public from the spread of smallpox.

Aside from the repeated references to “preventing the

spread” of smallpox, the opinion makes many allusions to

the dangers of widespread transmission of the disease among

the public. See, e.g., 197 U.S. at 26 (mentioning the “injury

that may be done to others” if a person has the liberty to

refuse vaccines); id. at 27 (“a community has the right to

protect itself against an epidemic of disease which threatens

the safety of its members”); id. at 28 (noting smallpox was

“prevalent and increasing at Cambridge”); id. at 30–31

(vaccination is the “best known[] way in which to meet and

suppress the evils of a smallpox epidemic that imperiled an

entire population”); id. at 31 (discussing the need to “stamp

out the disease of smallpox” for the “protection of the public

health and the public safety”).

If we accept the majority’s holding that a state can

impose a vaccine mandate just to “lessen the severity of

symptoms” of sick persons—without considering whether it

42 HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO

lessens transmission and contraction of this disease—then

we are opening the door for compulsory medical treatment

against people’s wishes. Vaccines, by definition, build

immunity and prevent transmission and contraction of an

infectious disease, but we risk blurring the line between

vaccines and medical treatment if vaccines are defined as

anything that lessens symptoms.

None of this is to deny that the COVID-19 vaccines may

well have saved millions of lives of the elderly, people with

comorbidities, and others with weakened immune systems.

But we have held that the government cannot compel people

to involuntarily receive even life-saving medical treatment.

If lessening the severity of symptoms alone justifies vaccine

mandates, then it may well implicate the fundamental right

to “refus[e] unwanted medical treatment,” as explained by

Judge Collins in his panel concurrence. Health Freedom

Def. Fund v. Carvalho, 104 F.4th 715, 728 (9th Cir. 2024)

(Collins, J., concurring), vacated, 127 F.4th 750 (9th Cir.

2025); see also Cruzan ex rel. Cruzan v. Director, Mo. Dep’t

of Health, 497 U.S. 261, 278–79 (1990); Washington v.

Glucksberg, 521 U.S. 702, 724–25 (1997) (holding that the

“right of a competent individual to refuse medical treatment”

is “entirely consistent with this Nation’s history and

constitutional traditions” (citation omitted)). Indeed, under

the majority’s reasoning, we are only a step or two from

allowing the government to require COVID-19 patients to

take, say, Ivermectin if the government in its judgment

believes that it would “lessen the severity of symptoms.”

As a practical matter, I fear we are giving the

government a blank check to foist health treatment mandates

on the people—despite its checkered track record—when we

should be imposing a check against the government’s

incursion into our liberties.

HEALTH FREEDOM DEF. FUND, INC. V. CARVALHO 43

I respectfully dissent in part.