Curtis v. Inslee

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AILA CURTIS; CIERA AGEE; No. 24-1869

ALISON ARCHER; SHANNON

D.C. No.

LEE ADAMS; BECKY

3:23-cv-05741-

BARCENAS; HANNAH

RJB

BERNHARDT; KATHY

BORDEAUX; CHRISTINE AMBER

BRUCE; SUSAN BUCHANAN; OPINION

KIRSTEN CLARKE; DIANE

CLEMANS; JEFF COFFEY;

DEREK COINER; SHEILA CRAIG;

RAE LYNN CROCKER; LISA

DALUZ; CHRISTINA DAWSON;

MARGARITA DEMCHENKO;

MONICA DICKINSON; HAYLEY

DIXON; JASON DONG; SHANTA

GERVICKAS; EDUARD

GONCHARUK; AMY HASEROT;

BETHENY HAYDEN; RHONDA

HOLMES; MIKAYLA

HOLSINGER; SUMIKO KUBA;

NADEZHDA LITVINENKO;

LILIYA LOPATIN; MISTY

LYONS; SHEILA LYONS; IRINA

MAKSIMENKO; LYUBOV

MELNYCHUK; ASHLEY

MENDOZA; MONICA MILLER;

CHERYL MITCHELL; DAMARIS

MOCAN; KATHRYN MORGAN;

2 CURTIS V. INSLEE

NICK MORZHOV; DWAIN NASH;

LYSANDER NERIDA; KATHRYN

ORTEGA; YVONNE QUASHIE;

LESLIE QUINTANA; EMMA

RANSON; SHANNON

RINGNALDA; MALLORY

SCHLANG; MELISSA

SMITHDEAL; LORI SOUDERS;

BROOKE TANNER; TRACIE

THOMAS; DENA THORP;

JENNIFER TORRES; LYUBOV

TSHUPRIN; OLGA TSYTSYNA;

ROXANA VOLYNETS; HANNAH

WAGER; VERA YADLOVSKIY;

ALLA KUTSAR ZABOLOTSKA;

DINA ZABOLOTSKA; NELYA

ZABOLOTSKA; KRISTINE

ZAMUDIO; DANIEL BRICKERT;

AMY JAMES; BRITNEY BROWN;

NELLI ANTONOV; DAVID

BENNETT; AMBER TAYLOR;

TAMARA KOPP; WHITNEY

KONRADY; JOSEY KOLBO;

LINDSEY LAMB; KATERINA

EROKHINA; IGOR SHAPOVAL;

WHITNEY ONOFREY; AMY

TALLBUT; VIOLETTA ROBERTS;

LINDA VEATCH; ANGELA RIPP;

KRISTIN ELLISON; STACI GRAY,

Plaintiffs - Appellants,

v.

CURTIS V. INSLEE 3

JAY ROBERT INSLEE;

PEACEHEALTH, INC.; LIZ

DUNNE; DOUG KOEKKOEK,

Defendants - Appellees.

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted July 9, 2025

Seattle, Washington

Filed October 6, 2025

Before: M. Margaret McKeown, Richard A. Paez, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge McKeown

SUMMARY *

Employment/COVID-19

The panel affirmed the district court’s dismissal for

failure to state a claim of an action brought by former at-will

employees of a nonprofit health care system (Employees)

*

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

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

4 CURTIS V. INSLEE

alleging various statutory, constitutional, and state law

claims arising from then-Governor Jay Inslee’s August 2021

proclamation requiring healthcare workers in Washington to

be vaccinated against COVID-19.

The panel first held that none of the Employees’

statutory and non-constitutional claims alleged specific and

definite rights enforceable under 42 U.S.C. § 1983. The

panel therefore rejected Employees’ claims based on 21

U.S.C. § 360bbb-3, 10 U.S.C. § 980, 42 U.S.C. § 247d-6,

Article VII of the International Covenant on Civil and

Political Rights, 45 C.F.R. Part 46, the Belmont Report, the

Federal Wide Assurance Agreement, the COVID-19

Vaccination Program Provider Agreement, and Emergency

Use Authorizations.

Addressing the Employees’ constitutional claims, the

panel held that neither the Spending Clause nor the

Supremacy Clause provided Employees with a federal right

enforceable under § 1983. Employees’ claims under the

Fourteenth Amendment Due Process Clause failed. The

substantive due process claim alleging the right to refuse

unwanted investigational drugs was foreclosed by

Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Health

Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th

Cir. 2025) (en banc). The procedural due process claim

failed because, among other things, the Employees’ at-will

employment was not a constitutionally protected property

interest. Employees’ Equal Protection Clause claim,

asserting a claim of discrimination against a non-suspect

class, failed because the mandate here survived rational-

basis review.

Because amendment of the federal claims would be

futile, the panel held that the district court did not abuse its

CURTIS V. INSLEE 5

discretion in denying leave to amend the complaint. The

panel affirmed the dismissal of the state law claims alleging

breach of contract, employment tort, outrage, and invasion

of privacy against the Governor. As for the state-law claims

against PeaceHealth, the panel upheld the district court’s

discretion to decline to exercise supplemental jurisdiction.

COUNSEL

David J. Schexnaydre (argued), Schexnaydre Law Firm

LLC, Mandeville, Louisiana; Charice L. Holtsclaw,

Bellingham, Washington; for Plaintiffs-Appellants.

Ian D. Rogers (argued), Kai A. Smith, Zachary J. Pekelis,

and Meha Goyal, Pacifica Law Group LLP, Seattle,

Washington; Whitney A. Brown (argued), Stoel Rives LLP,

Anchorage, Alaska; Vanessa S. Power and Jenna M. Poligo,

Stoel Rives LLP, Seattle, Washington; for Defendants-

Appellees.

6 CURTIS V. INSLEE

OPINION

McKEOWN, Circuit Judge:

We have considered a spate of appeals related to

vaccination orders spawned by COVID-19. This case arises

from then-Governor Jay Inslee’s August 2021 proclamation

requiring healthcare workers in Washington to be vaccinated

against COVID-19. Aila Curtis and more than 80 other

former at-will employees of the nonprofit health care system

PeaceHealth (“Employees”) were terminated after they

refused to comply with PeaceHealth’s COVID-19

vaccination policy. Employees’ claims against PeaceHealth

and Governor Inslee range from statutory and constitutional

claims under 42 U.S.C. § 1983 to state-law contract and tort

claims. The district court dismissed all claims with

prejudice. Although Employees throw the kitchen sink at the

Proclamation, none of their wide-ranging sources of

purported rights supports their federal claims. As for the

state-law claims, the district court correctly dismissed with

prejudice the claims against the Governor and left the merits

of the claims against PeaceHealth for state courts to

adjudicate. The district court acted within its discretion in

denying leave to amend.

Because we affirm on the basis of Employees’ failure to

state a claim, we do not decide the questions of state action

and qualified immunity addressed by the district court. We

also note that our analysis holds even if the drug in question

was deemed “investigational,” as Employees assert; any

claimed error by the district court in its view of the facts

pertaining to this issue is harmless. We affirm.

CURTIS V. INSLEE 7

Background

On August 20, 2021, then-Governor of Washington State

Jay Inslee (“the Governor”) issued Proclamation 21-14 (“the

Proclamation”), which, absent an exemption, required

healthcare workers to be vaccinated against COVID-19

before October 18, 2021. In accord with this directive, on

August 30, PeaceHealth adopted a vaccination mandate for

its employees, with a deadline of October 15. Because

Employees refused to be vaccinated, PeaceHealth

terminated their employment.

Employees sued PeaceHealth and its executives

(collectively, “PeaceHealth”), as well as the Governor,

seeking damages. Employees allege that, leading up to the

vaccination deadline, the sole available vaccine to satisfy the

vaccination mandate was an “investigational drug,”

authorized only for emergency use. 1 Despite the fact that the

Pfizer vaccine authorized for emergency use and the Pfizer

vaccine fully approved by the Food and Drug Administration

undisputedly had the same “medical formulation,”

Employees claim that their rights were violated when they

were penalized for refusing a vaccine that was only EUA-

1

The Food and Drug Administration (“FDA”) issued an Emergency Use

Authorization (“EUA”) for Pfizer’s COVID-19 vaccine in January 2021.

Authorizations of Emergency Use of Two Biological Products During

the COVID–19 Pandemic; Availability, 86 Fed. Reg. 5200 (January 19,

2021). By August 2021, Pfizer’s EUA-authorized COVID-19 vaccines

had been manufactured and made available for many months.

As the district court noted, on August 23, 2021, the FDA approved

Pfizer’s COVID-19 vaccine, marketed as COMIRNATY. See We The

Patriots USA, Inc. v. Hochul, 17 F.4th 266, 283 (2d Cir. 2021) (“[T]he

FDA gave full approval to the Pfizer-BioNTech vaccine for individuals

16 years of age and older.”). We take as true Employees’ factual

assertion that Pfizer’s COVID-19 vaccines manufactured under FDA

approval were not available before the relevant vaccination deadlines.

8 CURTIS V. INSLEE

authorized and not yet FDA-approved. Employees also

claim they were not adequately informed of their option to

refuse administration of the vaccine. Employees contend that

these rights are enforceable through a variety of sources—

ranging from multiple federal statutes to the Fourteenth

Amendment to the terms of the agreements under which

COVID-19 vaccines (or “investigational drugs”) were

administered.

The district court first dismissed all of the claims against

the Governor, then dismissed the federal claims against

PeaceHealth, and finally denied Employees’ motions for

leave to amend and reconsideration and declined to exercise

supplemental jurisdiction over their state-law claims against

PeaceHealth.

Analysis

I. Statutory and Other Non-Constitutional Claims

Section 1983 authorizes private parties to sue for

violations of their constitutional rights and certain federal

statutory rights. 42 U.S.C. § 1983. Because a statutory right

enforceable under Section 1983 is not created “as a matter of

course,” Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166, 183 (2023), Employees must “prove that a

statute secures an enforceable right, privilege, or immunity,

and does not just provide a benefit or protect an interest.”

Medina v. Planned Parenthood S. Atl., 145 S. Ct. 2219, 2229

(2025). 2 Provisions that place a “merely precatory

2

“Plaintiffs suing under § 1983 do not have the burden of showing an

intent to create a private remedy because § 1983 generally supplies a

remedy for the vindication of rights secured by federal statutes. . . . Once

a plaintiff demonstrates that a statute confers an individual right, the right

is presumptively enforceable by § 1983.” Gonzaga Univ. v. Doe, 536

U.S. 273, 280, 284 (2002).

CURTIS V. INSLEE 9

obligation” on the government do not create enforceable

rights. Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007).

Although the existence of an “unambiguously

conferred,” “sufficiently specific and definite” statutory

right establishes a presumption of enforceability under

Section 1983, Gonzaga Univ. v. Doe, 536 U.S. 273, 280, 283

(2002) (citation omitted), that presumption can be overcome.

A Section 1983 claim will not be available where there is

“incompatibility between enforcement under § 1983 and the

enforcement scheme that Congress has enacted.” Talevski,

599 U.S. at 187.

Employees’ non-constitutional claims under Section

1983—styled as “subjected to investigational drug use,”

“unconstitutional conditions doctrine,” equal protection, due

process, and “spending clause doctrine”—are based on an

eclectic collection of statutes, an international treaty, a

regulation, two agreements, a report, and constitutional

doctrines and provisions. After considering each in turn, our

conclusion is unequivocal: None of these claims alleges a

specific and definite right enforceable by Employees under

Section 1983.

A. 21 U.S.C. § 360bbb-3 – “EUA Statute”

The statutory provision referred to by Employees as “the

EUA Statute” or 21 U.S.C. § 360bbb-3, a section of the

Food, Drug, and Cosmetic Act (“FDCA”), empowers the

FDA to authorize the use of a drug in certain circumstances.

Under this statute, the Secretary of Health and Human

Services is obliged to design “[a]ppropriate conditions . . . 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. § 360bbb-

3(e)(1)(A)(ii). Employees argue that Defendants did not

10 CURTIS V. INSLEE

adequately inform them of their option to refuse the COVID-

19 vaccine, thereby violating the statute.

Even assuming this language applies to Defendants and

their conduct, Congress has limited the enforcement of the

FDCA to public actions. Id. § 337(a) (requiring that

enforcement be brought “by and in the name of the United

States”). Contrary to Employees’ wishes, we cannot

“judicially creat[e] an implied private right of action.”

Instead, our role is to interpret Congress’s intent in creating

a private right. “In the absence of clear evidence of

congressional intent, we may not usurp the legislative power

by unilaterally creating a cause of action.” In re Digimarc

Corp. Derivative Litig., 549 F.3d 1223, 1230–31 (9th Cir.

2008). By providing only for public enforcement, Congress

has made its intent to “shut the door to private enforcement”

evident. Gonzaga Univ., 536 U.S. at 284 n.4. Employees

have not provided evidence of any contrary Congressional

intent or even a colorable interpretation of the statute that

would enable their suit. We conclude that Section 360bbb-3

does not create a private right that is enforceable under

Section 1983.

B. 10 U.S.C. § 980 – “Funds Appropriated for

Human Subjects”

This statute, 10 U.S.C. § 980, provides that “[f]unds

appropriated to the Department of Defense may not be used

for research involving a human being as an experimental

subject.” Spending-power statutes, like this one, are

“especially unlikely” to confer an enforceable right. Medina,

145 S. Ct. at 2230. This statute contains no language

“phrased in . . . explicit rights-creating terms.” Gonzaga, 536

U.S. at 284. Nor does it “manifest[] an ‘unambiguous’ intent

CURTIS V. INSLEE 11

to confer individual rights” and so is not enforceable under

Section 1983. Id. at 280 (citation omitted).

C. 42 U.S.C. § 247d-6 – “Public Readiness and

Emergency Preparedness Act”

The Public Readiness and Emergency Preparedness Act

(“PREP Act”), 42 U.S.C. § 247d-6, requires the Secretary of

Health and Human Services to “ensure that . . . potential

participants [in the administration or use of a covered

countermeasure] are educated with respect to . . . the

voluntary nature of the program.” Id. § 247d-6e(c).

Employees extrapolate from this statute a “right” to be so

educated and thus hang their hat on this statute as a basis for

their Section 1983 claims. The PREP Act, however, lacks

the requisite “rights-creating language” and “individual[]

focus” to create rights enforceable under Section 1983.

Gonzaga, 536 U.S. at 290. Further, the statute, at most,

imposes an educational obligation on a federal agency, not

Defendants. Plaintiffs’ PREP Act claim therefore fails.

D. Article VII of the International Covenant on Civil

and Political Rights

The International Covenant on Civil and Political Rights

(“ICCPR”) is a treaty that protects certain human rights.

Some treaties—those that are either self-executing or

legislatively implemented—can confer enforceable rights

under Section 1983. See, e.g., Olympic Airways v. Husain,

540 U.S. 644, 646 (2004) (upholding the imposition of

liability under Article 17 of the Warsaw Convention);

Missouri v. Holland, 252 U.S. 416, 431 (1920) (discussing

the Migratory Bird Treaty Act of 1918 as legislative

implementation that “g[a]ve effect” to a 1916 treaty between

the United States and Great Britain); see also Medellín v.

Texas, 552 U.S. 491, 568–69 (2008) (appendix listing

12 CURTIS V. INSLEE

“Supreme Court decisions considering a treaty provision to

be self-executing”).

However, the ICCPR was ratified by the United States

“on the express understanding that it was not self-executing

and so did not itself create obligations enforceable in the

federal courts.” Sosa v. Alvarez-Machain, 542 U.S. 692, 735

(2004). Because the ICCPR is not self-executing, and

Congress has not acted to enable private lawsuits for

violations of rights enshrined in that treaty, it is not

“susceptible to judicial enforcement.” Serra v. Lappin, 600

F.3d 1191, 1196 (9th Cir. 2010) (citation omitted). Article

VII of the ICCPR thus cannot serve as the basis for a Section

1983 action. See Medellín, 552 U.S. at 505 (concluding that

absent self-executing status or implementing statutes, such

treaties’ commitments are “not domestic law”); Frolova v.

Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th

Cir. 1985) (holding that a treaty “do[es] not provide the basis

for a private lawsuit” if it is neither self-executing nor

implemented by legislation).

E. 45 C.F.R. Part 46 – “Human Subjects in

Research”

Employees contend that Defendants, in administering

“investigational drugs,” were “bound to comply” with 45

C.F.R. Part 46, which concerns the protection of human

subjects in research. 45 C.F.R. §§ 46.101, et seq. But even if

these regulations applied to the conduct at issue here, a

regulation “may not create a right that Congress has not.”

Alexander v. Sandoval, 532 U.S. 275, 291 (2001); see also

Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th

Cir. 2003). Employees do not argue that any authorizing

CURTIS V. INSLEE 13

statutes create any right enforceable under Section 1983. 3

The regulation, standing alone, cannot support Employees’

claims.

F. The Belmont Report

The Belmont Report outlines “basic ethical principles”

and their application in the conduct of research on human

subjects. National Commission for the Protection of Human

Subjects of Biomedical and Behavioral Research, The

Belmont Report (April 18, 1979),

https://www.hhs.gov/ohrp/regulations-and-policy/belmont-

report/read-the-belmont-report/index.html, accessed May 9,

2025. The Belmont Report is neither a statute nor a

regulation. It does not carry the force of law. It contains no

hint of a legal right or remedy enforceable in U.S. courts.

Employees’ claims based on the Belmont Report also fail.

G. The Federal Wide Assurance Agreement

Like the Belmont Report, the Federal Wide Assurance

agreement (“FWA”) is far afield from any potential rights-

creating source. The FWA is an agreement between the U.S.

Department of Health and Human Services and any

institution involved in federally funded research, under

which the institution commits to complying with

requirements in 45 C.F.R. Part 46 and the Belmont Report.

Employees argue that the FWA created a duty to obtain

“legally effective informed consent” from them and “to

ensure that at no time is an individual under ‘coercion,’

3

If a “statute itself confers a specific right upon the plaintiff, and a valid

regulation merely further defines or fleshes out the content of that right,

then the statute—in conjunction with the regulation—may create a

federal right as further defined by the regulation.” Save our Valley, 335

F.3d at 941 (quoting Harris v. James, 127 F.3d 993, 1009 (11th Cir.

1997)).

14 CURTIS V. INSLEE

‘undue influence,’ ‘unjustifiable pressures’ or a sanction to

participate” in the administration of an investigational drug.

Notably, the language regarding “coercion” and similar

phrases comes from the Belmont Report, not the FWA. Even

if the FWA created such a duty, and such a duty applied to

Defendants, the FWA does not create rights enforceable

under Section 1983. See Save Our Valley, 335 F.3d at 941–

42. Employees, who bear the burden of proving the existence

of a right enforceable under Section 1983, have failed to

point to any “explicit rights-creating terms” in the FWA

itself. Gonzaga, 536 U.S. at 284. Their sole citation is to a

federal government website that explains the general nature

of the FWA. This basis for Employees’ Section 1983 claim

too fails.

H. The COVID-19 Vaccination Program Provider

Agreement

The COVID-19 Vaccination Program Provider

Agreement (“Provider Agreement”) is “a form contract

between the [Center for Disease Control] and medical

providers that plan to administer COVID-19 vaccines.” As

relevant, medical providers are to “provide a[] . . . fact sheet

. . . to each vaccine recipient, the adult caregiver

accompanying the recipient, or other legal representative.”

The contract also incorporates “all applicable requirements

as set forth by the U.S. Food and Drug Administration.”

Employees contend that the Provider Agreement, by

incorporating all federal requirements, required the medical

providers to “accept[] the Appellants’ freely chosen option”

to refuse the administration of the drug at issue. Once more,

such an agreement cannot create enforceable rights under

Section 1983. Id.

CURTIS V. INSLEE 15

Nor do Employees meet the requirements for bringing

suit as direct third-party beneficiaries to a government

contract. Employees bear the burden of demonstrating that

they individually can enforce any right created by the

contract and seek damages. See Indep. Living Ctr. of S. Cal.,

Inc. v. Kent, 909 F.3d 272, 280 (9th Cir. 2018). Where, as

here, third-party beneficiaries seek consequential damages

for failure to perform under a government contract, that

burden has two requirements: 1) that “the terms of the

promise provide for such liability,” Restatement (Second) of

Contracts § 313(2)(a); and 2) that the plaintiffs “fall within

a class clearly intended by the parties to benefit from the

contract.” Orff v. United States, 358 F.3d 1137, 1145 (9th

Cir. 2004) (citation omitted).

Employees meet neither requirement. The Provider

Agreement contemplates fines and imprisonment as

penalties but does not address private enforcement. Cf. Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 190 (1994) (“We have been quite

reluctant to infer a private right of action from a criminal

prohibition alone.”). Nothing in the Provider Agreement

even hints at the option for a damages claim. As for the

second requirement, if there are any direct beneficiaries to

the Provider Agreement, those would be “vaccine

recipient[s].” As the district court pointed out, Employees

are not vaccine recipients but rather vaccine refusers. Once

again, Employees have not demonstrated that they have a

right to sue under this type of agreement.

I. Emergency Use Authorizations

Emergency use authorizations (“EUAs”) are letters from

the Chief Scientist of the FDA to drug manufacturers. These

letters contain conditions of authorization, including the

16 CURTIS V. INSLEE

requirement of distribution of “authorized labeling” to

“vaccination providers, recipients, and caregivers.” Yet

again, these letters do not confer rights enforceable under

Section 1983. Nor are the Employees direct beneficiaries of

these letters such that they could possibly sue in contract—

they are neither the senders nor the recipients of these letters,

and they have not alleged that they are “vaccination

providers, recipients, [or] caregivers.”

II. Constitutional Provisions

A. Spending Clause

Employees style one of their Section 1983 claims under

the “Spending Clause Doctrine,” presumably referring 10

U.S.C. § 980, governing the use of Department of Defense

funds. While statutes enacted pursuant to the Spending

Clause “can create § 1983-enforceable rights,” the operative

question is whether they “actually do so.” Talevski, 599 U.S.

at 180. That question is answered by our discussion of the

statutes above. The invocation of the Spending Clause does

not change the analysis.

B. Supremacy Clause

When discussing the PREP Act and the “EUA Statute,”

Employees invoke “preemption” in their complaint and

briefs. To the extent Employees rely on the Supremacy

Clause as a basis for their Section 1983 claims, this argument

fails. The Supremacy Clause itself “is not a source of any

federal rights” enforceable under Section 1983. Golden State

Transit, 493 U.S. at 107 (citation omitted). The “availability

of the § 1983 remedy turns on whether the statute[s]” that

Employees argue preempt state action create enforceable

rights. We already concluded they do not.

CURTIS V. INSLEE 17

C. Fourteenth Amendment Due Process

a. Substantive Due Process

Employees’ efforts to situate their claims under the

Fourteenth Amendment Due Process Clause also fail.

Employees claim Defendants violated their substantive due

process right “to refuse unwanted investigational drugs.”

The “substantive protection of the Due Process Clause”

extends to “[o]nly those aspects of liberty that we as a society

traditionally have protected as fundamental.” Mullins v.

Oregon, 57 F.3d 789, 793 (9th Cir. 1995). Because

fundamental rights are highly circumscribed, courts are

“reluctant to expand the concept of substantive due process.”

Regino v. Staley, 133 F.4th 951, 962 (9th Cir. 2025) (citation

omitted). Employees must therefore articulate a “careful

description” of a fundamental right. Stormans, Inc. v.

Wiesman, 794 F.3d 1064, 1085 (9th Cir. 2015) (quoting

Washington v. Glucksberg, 521 U.S. 702, 728 (1997)). If a

fundamental right is implicated, we apply strict scrutiny.

Witt v. Dep’t of Air Force, 527 F.3d 806, 817 (9th Cir.

2006)). If a fundamental liberty interest is not implicated, we

apply rational basis review, which is “highly deferential to

the government, allowing any conceivable rational basis to

suffice.” Health Freedom Def. Fund, Inc. v. Carvalho, 148

F.4th 1020, 1029 (9th Cir. 2025) (en banc) (quotation

omitted). 4

Employees’ clearest articulation of the right they assert

is the “right to refuse an investigational drug without penalty

4

We recently rejected a similar challenge to a COVID-19 vaccine

mandate. In Carvalho, we held that the “constitutionality of a vaccine

mandate . . . turns on what reasonable legislative and executive

decisionmakers could have rationally concluded about whether a vaccine

protects the public’s health and safety.” Id. at 1031.

18 CURTIS V. INSLEE

or pressure.” It is undisputed that the “investigational drug”

is a COVID-19 vaccine and that the Governor and

PeaceHealth believed compulsory vaccination for healthcare

workers would protect public health. In fact, the vaccine

even has the same “medical formulation” as a vaccine that

was FDA-approved before the issuance of PeaceHealth’s

vaccination policy and thus prior to Employees’ refusals. On

this record, for the purposes of this analysis, there is no

material distinction between the refusal of a vaccine and

Employees’ refusal of administration of an investigational

drug that is clinically identical to a vaccine.

Under longstanding Supreme Court precedent, the right

to refuse a vaccine is not inviolate. Penalties for refusing

vaccination are plainly permissible. The Supreme Court in

Jacobson v. Massachusetts upheld a vaccination-refusal

penalty of “commit[ment] until [a] fine was paid” and

indicated the permissibility of “manifold restraints,”

including quarantine. 197 U.S. 11, 21, 26 (1905); see also

Zucht v. King, 260 U.S. 174, 175 (1922) (upholding the

exclusion of a student from school for refusing vaccination).

When we consider “substantive due process challenges to

COVID-19 vaccine mandates,” our analysis is controlled by

Jacobson. Carvalho, 148 F.4th at 1029.

Specifically, under Jacobson, penalties justified by

public health concerns are legitimate. The court in Jacobson

was crystal clear that, because “a community has the right to

protect itself against an epidemic of disease which threatens

the safety of its members,” a vaccine mandate that has a “real

or substantial relation to the protection of public health” is

not “in palpable conflict with the Constitution.” 197 U.S. at

27, 31. Thus, the Court in Jacobson “essentially applied

rational basis review” to the smallpox vaccine mandate and

found it survived such deferential review. Carvalho, 148

CURTIS V. INSLEE 19

F.4th at 1030. In Carvalho, applying Jacobson, we reached

the same conclusion with respect to a vaccination policy

imposed for closely analogous reasons, at nearly the same

time, as the vaccine mandates at issue here. In that case,

applying rational basis review, we upheld the vaccine policy

because it was “more than reasonable for the [state actors] to

conclude that COVID-19 vaccines would protect the health

and safety of [the relevant populations].” Id.

Jacobson and Carvalho foreclose Employees’

substantive due process claim regarding the purported “right

to refuse an investigational drug without penalty or

pressure.” The penalties imposed on Employees were amply

justified by public health concerns, as explained elsewhere

in this opinion. Employees have failed to plausibly allege

that the state action in this case was an exercise of “arbitrary

power” rather than merely “that broad discretion required for

the protection of the public health.” Zucht, 260 U.S. at 177.

We therefore conclude that Employees have not stated a

substantive due process claim based on the right to refuse the

COVID-19 vaccine at issue.

Employees’ substantive due process claim regarding the

PREP Act’s grant of immunity also fails. Even if there exists

some constitutional limit on the Congressional power to

grant immunity, Employees have pointed to no authority

suggesting that the PREP Act exceeds that limit. Employees

cannot allege a deprivation of their ability to bring suit, as

they have had an opportunity to be heard in this action. And,

of course, Employees are not entitled to damages in the

absence of a meritorious claim. As for any right to

“educat[ion] with respect to the voluntary nature of the

program,” Employees have not shown a deprivation of that

right. Materials provided to recipients and caregivers made

clear that “it is [their] choice to receive or not receive any of

20 CURTIS V. INSLEE

these vaccines,” and consent forms acknowledged their right

to refuse.

b. Procedural Due Process

Employees’ procedural due process claim fares no better.

Employees’ at-will employment with PeaceHealth is not a

constitutionally protected property interest under the

Fourteenth Amendment. Portman v. Cnty. of Santa Clara,

995 F.2d 898, 904 (9th Cir. 1993) (holding that at-will

employees “ha[ve] no property interest in the[ir] job[s]”). In

the absence of a deprivation of a protected interest,

Employees cannot make out a procedural due process claim.

See Reed v. Goertz, 598 U.S. 230, 236 (2023).

Employees also allege a deprivation of a protected

liberty interest in the refusal of unwanted administration of

a drug and a protected property interest in the use of their

medical licenses (asserted in the Second Amended

Complaint). Assuming without deciding that Employees

have adequately alleged a deprivation, they have not

plausibly alleged that they have not received all the process

that was due.

Unlike their prior pleadings, Employees’ Second

Amended Complaint claims that the Governor gave

Employees no “date, time, place, or procedure to defend

their right to refuse injection . . . before depriving them of

their liberty and property.” 5 However, the Proclamation

provided notice of the vaccination requirements and of the

consequence of termination for failure to comply. The

Proclamation also required that healthcare workers be given

opportunities to be heard for the purpose of religious and

5

The Second Amended Complaint does not make any assertions on this

point as to PeaceHealth.

CURTIS V. INSLEE 21

medical exemptions and that assessments for qualification

for such exemptions be “individualized.” Employees do not

contend that they sought and were deprived of an exemption

without due process.

Indeed, it is difficult to characterize Employees’

complaint in the usual framework of a procedural due

process challenge. A typical challenge concerns a plaintiff

who, subjected to a permissible standard by the state, seeks

to show that “there is no [non-discriminatory] basis for their

finding that he fails to meet these standards.” Schware v. Bd.

of Bar Exam. of State of N.M., 353 U.S. 232, 239 (1957). The

ordinary purpose of the due process inquiry is to fulfill “the

public interest in correct eligibility determinations,” and thus

the ordinary question is one of factual “eligibility.”

Goldberg v. Kelly, 397 U.S. 254, 266 (1970).

Here, by contrast, Employees seek to challenge the

standards themselves: either the breadth of the mandate or

the narrowness of the exemptions. But the legitimacy of a

standard—as opposed to the process by which the state

determines whether the Employee meets that standard—is

not a question to be answered by procedural due process.

The Supreme Court long ago held that “legislation is not

open to the charge of depriving one of his rights without due

process of law, if it be general in its operation upon the

subjects to which it relates.” Dent v. West Virginia, 129 U.S.

114, 124 (1889). The Governor was under no obligation to

hold a town hall for Employees to make known their various

complaints regarding the Proclamation. The process the state

created for granting exemptions “fulfilled the purpose of the

requisite pretermination hearing”: to “provide a meaningful

hedge against erroneous action.” Clements v. Airport Auth.

of Washoe Cnty., 69 F.3d 321, 332 & n.13 (9th Cir. 1995)

22 CURTIS V. INSLEE

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 543 n.8 (1985)).

Employees’ procedural due process challenge—better

construed as a bid to alter the state’s policies, rather than its

procedures—fails.

D. Equal Protection

Employees assert a claim of discrimination against a

non-suspect class, cf. New York City Transit Auth. v. Beazer,

440 U.S. 568, 592–93 (1979), namely, a class of “healthcare

workers . . . choosing the option to refuse.” However, the

Proclamation “appl[ied] evenhandedly” to all healthcare

workers in Washington State, except for its religious and

medical exemptions. Beazer, 440 U.S. at 587. The presence

of the exemptions splits Employees’ articulated class in two:

those workers who refused and had exemptions (and so were

not penalized), and those workers who refused and did not

have exemptions (and so were penalized). The “exclusionary

line” of vaccination status challenged by Employees simply

does not reflect the reality of the policy, which allows

exemptions for medical and religious reasons. Id. at 592. We

are hard-pressed to conclude that they have “confronted [us]

with the question whether the rule reflects an impermissible

bias against a special class.” Id. at 588.

Even if the vaccine mandates classify such that the Equal

Protection Clause applies, our “only inquiry” is whether

Employees’ treatment is “rationally related to the State’s

objective.” Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194,

199 (1979) (quoting Mass. Bd. of Ret. v. Murgia, 427 U.S.

307 315 (1976)); see also Carvalho, 148 F.4th at 1033. We

conclude that the state action here easily survives rational-

basis review.

CURTIS V. INSLEE 23

Rational-basis review affords government actions a

“strong presumption of validity.” Aleman v. Glickman, 217

F.3d 1191, 1200 (9th Cir. 2000) (citation omitted). It is

satisfied where the state decisionmaker “could rationally

have decided” that its action would further a legitimate state

interest. Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 466 (1981) (emphasis omitted). “Under rational basis

review, the state actor has no obligation to produce evidence

to sustain the rationality of a . . . classification; rather, the

burden is on the one attacking the . . . arrangement to

negative every conceivable basis which might support it.”

Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d

1011, 1031 (9th Cir. 2010) (internal quotations and citation

omitted).

Early in the pandemic, we reiterated that “[s]temming

the spread of COVID-19” is not merely a legitimate state

interest; it is “unquestionably a compelling” one.

Slidewaters LLC v. Wash. State Dep’t of Lab. & Indus., 4

F.4th 747, 758 (9th Cir. 2021) (quoting Roman Cath.

Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020)). In

Biden v. Missouri, the Supreme Court recently articulated

the public-health rationale underlying vaccine mandates for

healthcare workers:

COVID–19 is a highly contagious,

dangerous, and—especially for Medicare and

Medicaid patients—deadly disease. The

Secretary of Health and Human Services

determined that a COVID-19 vaccine

mandate will substantially reduce the

likelihood that healthcare workers will

contract the virus and transmit it to their

patients. . . . He accordingly concluded that a

24 CURTIS V. INSLEE

vaccine mandate is “necessary to promote

and protect patient health and safety” in the

face of the ongoing pandemic.

595 U.S. 87, 93 (2022).

That decision plainly demonstrates that a state

decisionmaker “could rationally have decided” that a

vaccine mandate for healthcare workers would further the

legitimate state interest of stemming the spread of COVID-

19. Thus, the mandate here survives rational-basis review.

Clover Leaf Creamery, 449 U.S. at 466.

Employees provide no factually supported argument to

undermine this conclusion. Employees only note that “[a]n

investigational drug does not have a legal indication to treat,

cure, or prevent any known disease or virus.” But the

absence of a legal indication does not negate the obvious

inference that the available COVID-19 vaccine would be

rationally related to the protection of public health. See

Rancho Santiago Cmty. Coll. Dist., 623 F.3d at 1031. For

example, the Proclamation recognized that based on

“clinical trials involving tens of thousands of participants”

and “the [FDA’s] rigorous scientific standards” for

emergency use authorization, the available COVID-19

vaccines are “safe and effective.” See also Carvalho, 148

F.4th at 1033 (concluding that an August 2021 COVID-19

vaccination mandate for public school teachers easily

survived rational basis review). And, in this case, Employees

even concede that the vaccine available to them had the same

medical formulation and effectiveness as an FDA-approved

COVID-19 vaccine. If there were any state action

constituting differential treatment of Employees as a class,

that action had a rational basis. Employees’ equal protection

challenge fails.

CURTIS V. INSLEE 25

III. Denial of Leave to Amend

We review for abuse of discretion the district court’s

denial of leave to amend. Herring Networks, Inc. v.

Maddow, 8 F.4th 1148, 1155 (9th Cir. 2021). Employees

appeal that denial only with respect to their federal claims.

Denial of leave to amend was proper because amendment of

those claims would be futile. Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011). No

amendment to Employees’ existing claims could change the

absence of a source of law conferring on them a right

enforceable under Section 1983. Employees’ one novel

claim in the Second Amended Complaint, an invocation of

21 U.S.C. § 355(a), another provision of the FDCA, fails for

the same reasons as did their claim under 21 U.S.C.

§ 360bbb-3. Nor do Employees’ proposed amendments alter

our analysis with respect to the constitutional claims. The

Second Amended Complaint reiterates that the EUA-

authorized and FDA-approved vaccines “can be used

interchangeably to provide the vaccination series.” In light

of that continued allegation, an inference in favor of

Employees’ inconsistent new assertion that the EUA-

authorized vaccine does not “stop infection or transmission”

of COVID-19 would be unreasonable. On review of a

motion to dismiss, we need draw only those reasonable

inferences in the Employees’ favor, not all potential

inferences. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

(2009).

Employees’ attempt to distinguish Jacobson by

comparing fatality rates from smallpox to fatality rates from

COVID-19 does not change the equal protection analysis

under rational-basis review, particularly given that

stemming the spread of COVID-19 is a “compelling”

interest. Roman Cath. Diocese of Brooklyn, 592 U.S. at 18.

26 CURTIS V. INSLEE

Nor does this new assertion disturb our conclusion that

Jacobson forecloses Employees’ substantive due process

claim. See Carvalho, 148 F.4th at 1029–31. Further,

Employees’ attempt to distinguish Jacobson on this ground

fails under Carvalho, which rejected attempts to distinguish

Jacobson on similar grounds. Id. at 1033. Employees’

proposed amendment regarding procedural due process

“fail[s] to cure the pleading deficiencies.” Cervantes, 656

F.3d at 1041.

Because amendment would be futile, the district court

did not abuse its discretion in denying leave to amend the

complaint.

IV. Dismissal of State Law Claims

Employees brought four claims under Washington state

law: “breach of contract,” “employment tort,” “outrage,” and

“invasion of privacy.” We review de novo the district court’s

dismissal of the state-law claims as to the Governor. Laws.

for Fair Reciprocal Admission v. United States, 141 F.4th

1056, 1063 (9th Cir. 2025). We review for abuse of

discretion the district court’s decision not to exercise

supplemental jurisdiction over the state-law claims as to

PeaceHealth and thus to dismiss them without prejudice.

Bryant v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th

Cir. 2002).

The breach-of-contract claim was properly dismissed

because the Governor was not a signatory to the Provider

Agreement, the contract at issue, and therefore had no duty

that could have been breached. The employment-tort claim

was dismissed because Employees did not allege that the

Governor was acting as their employer. The invasion-of-

privacy claim was dismissed because Employees’

allegations did not relate to any actions taken by the

CURTIS V. INSLEE 27

Governor. Employees do not specifically dispute any of

these determinations on appeal.

As to the outrage claim against the Governor, the district

court concluded that “[t]he properly credited allegations in

the Amended Complaint are insufficient from which to

conclude that the Proclamation was ‘beyond all possible

bounds of decency’ considering the circumstances at the

time,” and therefore could not meet an element of outrage

under Washington state law. On de novo review, even

assuming that the drugs were “investigational,” we are

unpersuaded that Employees have alleged facts sufficient to

“state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678. As the Supreme Court noted with respect to

a similar federal vaccine mandate, “[v]accination

requirements are a common feature of the provision of

healthcare in America: Healthcare workers around the

country are ordinarily required to be vaccinated for diseases

such as hepatitis B, influenza, and measles, mumps, and

rubella.” Biden, 595 U.S. at 95. At the time of the

Proclamation, the drug in question was already authorized

for emergency use to prevent COVID-19. The record shows

that the CDC had concluded months earlier that the drug had

a 92% efficacy and that taking the EUA-authorized drug was

associated with “reduced risk for . . . severe outcomes” of

infection with COVID-19. Within three days of the

Proclamation’s issuance, a vaccine with an identical medical

formulation was fully approved by the FDA. Given the

backdrop of common vaccination requirements for

healthcare workers, the Proclamation does not remotely

constitute conduct “utterly intolerable in a civilized

community.” Kloepfel v. Bokor, 66 P.3d 630, 632 (Wash.

2003) (emphasis omitted). We affirm the district court’s

dismissal of the outrage claim as to the Governor.

28 CURTIS V. INSLEE

As for the state-law claims against PeaceHealth, we

uphold the district court’s discretion to decline to exercise

supplemental jurisdiction. The district court concluded that

it had “dismissed all claims over which it ha[d] original

jurisdiction,” and that the remaining state-law claims “raise[]

novel or complex issues of state law,” two of the important

factors that trigger a court’s discretion to decline

supplemental jurisdiction. Acri v. Varian Assocs., Inc., 114

F.3d 999, 1000 n.2 (9th Cir. 1997) (en banc) (citing 28

U.S.C. § 1367(c)). In exercising that discretion, the court

appropriately noted that the decision served the value of

comity and possibly also the values of economy,

convenience, and fairness. The district court did not pass

judgment on whether the Employees had failed to state a

claim under state law or failed to assert rights protected

under state law. The court left those issues to the state courts

and was within its discretion in doing so.

AFFIRMED.