Malcolm Johnson v. Kate Brown

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 23 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MALCOLM JOHNSON; STEPHANIE No. 22-35624

KAISER; JESSIE CLARK; CHRISTINA

CARMICHAEL; TARA JOHNSON; D.C. No. 3:21-cv-01494-SI

KATHLEEN SANDERS; F., Dr.; TRAVIS

BRENNEMAN; D., Ms.; LINDA RISER;

CHAD DILLARD; HEIDI HOPKINS; MEMORANDUM*

GLENN HOPKINS; LEANN WAGERLE;

TERESA LYNN KARN; BOAZ MILLER;

CANDY BARNETT; LANE EWRY;

MARGARET HENSON; MELISSA

SWANCUTT; B., Ms.; WENDY SUMNER;

ADRIAN PARK; C., Dr.; KIMBERLY

SWEGAR; KELLY HICKMAN; GAIL

GILTNER; G., Ms.; JENNIFER BRIER;

MELANIE CRITES-BACHERT, D.O.;

MARTI LAMB; MARY GABRIELE, M.D.;

ELISABETH COATES; KORI

DISTEFANO; TERESE LAMPA; JAZMIN

GRAFF, M.D.; TERRI KAM; STEPHANIE

NYHUS; A., Dr.; DAVID WEST; NATE

LYONS; MITCHELL MOORE; DEBRA

BURDETTE; SUSAN BURDICK; SHANE

BAKER; KRISTIN DILL; K., Ms.; FREE

OREGON; M., Ms.; ANDRIELE

STODDEN; N., Ms.; GREG NIGH;

AMANDA GAYKEN; H.; KAREN

CARREIRA; DANIEL PAUL PENNA;

TAILER HART; CAROLYN BROWN;

ALYSSA LAKE; JANIRA BRANNIGAN;

AMETHYST WHITE; SERENA BORDES;

DEAN JOHNSON; LUCERO TERRAZAS;

*

This disposition is not appropriate for publication and is not precedent except as

provided by Ninth Circuit Rule 36-3.

ELAINE ATKINSON; STACY

FLETCHER; J.; CHILDREN’S HEALTH

DEFENSE, Oregon; CHRISTINA

TRESSEL; L., Ms.; CARRIE HOWE;

TAMARA MILETICH; TAMMY GOAD;

CASSANDRA DYKE;

Plaintiffs-Appellants,

v.

TINA KOTEK, in her official capacity as

Governor of the State of Oregon; SEJAL

HATHI, in her official capacity as Director

of the Oregon Health Authority; KATE

BROWN, in her personal capacity;

PATRICK ALLEN, in his personal capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted September 14, 2023

Seattle, Washington

Before: HAWKINS, R. NELSON, and COLLINS, Circuit Judges.

Plaintiffs appeal the dismissal of their federal claims in this action under 42

U.S.C. § 1983, in which they have challenged three since-repealed orders issued by

former Oregon Governor Kate Brown and former Director of the Oregon Health

Authority (“OHA”) Patrick Allen. We largely affirm the district court’s judgment,

but we remand with instructions to correct the judgment to state that certain

mooted claims are dismissed without prejudice, rather than with prejudice.

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In August 2021, then-Governor Brown issued an executive order generally

prohibiting any state executive branch employee from continuing to work for the

executive branch after October 18, 2021 unless he or she received an approved

Covid vaccine. Two OHA orders issued under Director Allen’s authority likewise

generally forbade healthcare workers and school employees from continuing to

work in those capacities after October 18, 2021 unless they received Covid

vaccinations. Shortly before the orders were about to take effect, Plaintiffs filed

this suit, challenging all three orders on various grounds. Plaintiffs’ operative

complaint named as Defendants Governor Brown and Director Allen, in their

official and personal capacities. Governor Brown, however, rescinded the

challenged executive order on April 1, 2022. In July 2022, the district court

dismissed all claims against Governor Brown as having been mooted by the

rescission of the challenged executive order, and the court dismissed the remaining

claims against Director Allen for failure to state a claim.

Plaintiffs timely appealed in August 2022. After Allen resigned as OHA

Director in early 2023, the two challenged OHA orders were rescinded by an

interim OHA Director, effective June 30, 2023.1 We have jurisdiction under

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Moreover, during the course of this appeal, Governor Brown was succeeded by

Governor Tina Kotek, and Director Allen was ultimately succeeded by Director

Sejal Hathi. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor

Kotek and Director Hathi are automatically substituted for their predecessors with

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28 U.S.C. § 1291, and we review the district court’s decision de novo. Hunley v.

Instagram, LLC, 73 F.4th 1060, 1068 (9th Cir. 2023).

1. All three challenged orders have been rescinded, and we are persuaded

that, on the particular record of this case, “the State has carried its burden of

establishing there is no reasonable expectation the challenged conduct will recur.”

Brach v. Newsom, 38 F.4th 6, 15 (9th Cir. 2022) (en banc). Moreover, Plaintiffs’

complaint did not seek reinstatement as a remedy for any employee who was

terminated as a consequence of the vaccine mandates while they were in effect,

and Plaintiffs likewise have not asserted the issue of reinstatement as a basis for

rejecting Defendants’ mootness arguments. Cf. Doe v. Lawrence Livermore Nat’l

Lab., 131 F.3d 836, 840 (9th Cir. 1997) (stating that “reinstatement constitutes

prospective injunctive relief”). We therefore deem any contentions based on

reinstatement to be forfeited. See Brownfield v. City of Yakima, 612 F.3d 1140,

1149 n.4 (9th Cir. 2010). Under these circumstances, Plaintiffs’ claims for

prospective injunctive relief and declaratory relief are moot. See Brach, 38 F.4th

at 11. The district court, however, dismissed these claims (even ones that it found

to be moot) with prejudice. Under Brach, that was error. We therefore vacate the

respect to the claims asserted below against the Governor and Director in their

official capacities. Former Governor Brown and former Director Allen remain the

named Defendants with respect to the claims asserted against them below in their

personal capacities.

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district court’s judgment dismissing with prejudice Plaintiffs’ claims for injunctive

and declaratory relief and remand with instructions to dismiss these claims without

prejudice as moot. See id. at 15 (citing Board of Trs. of Glazing Health & Welfare

Tr. v. Chambers, 941 F.3d 1195, 1200 (9th Cir. 2019) (en banc)).

2. To the extent that Plaintiffs seek damages against the Governor and the

Director in their official capacities, those claims are barred by the Eleventh

Amendment. Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).

3. Plaintiffs challenge the dismissal of their three federal claims for

monetary damages against former Governor Brown and former Director Allen in

their personal capacities.2 These claims all fail as a matter of law.

a. Plaintiffs assert a § 1983 claim alleging that the challenged orders

violated the Constitution’s Supremacy Clause. This claim is based on the

contention that, by requiring use of a vaccine that was only subject to an

emergency authorization for its use, the orders were preempted by § 564 of the

Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 360bbb-3. That statute

states that, in authorizing “the emergency use of an unapproved product,” the FDA

must, “to the extent practicable,” set “conditions” on such authorization, including

2

The district court erred in holding that the damages claims against Governor

Brown were mooted by the rescission of the challenged executive order. See

Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Hum. Servs., 532

U.S. 598, 608–09 (2001) (“[S]o long as the plaintiff has a cause of action for

damages, a defendant’s change in conduct will not moot the case.”).

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“[a]ppropriate conditions designed to ensure that individuals to whom the product

is administered are informed,” inter alia, “of the option to accept or refuse

administration of the product.” 21 U.S.C. § 360bbb-3(e)(1)(A). However, “the

Supremacy Clause, of its own force, does not create rights enforceable under

§ 1983.” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107

(1989) (footnote omitted). Rather, “the availability of the § 1983 remedy turns on

whether the [assertedly pre-empting] statute, by its terms or as interpreted,

[1] creates obligations sufficiently specific and definite to be within the

competence of the judiciary to enforce, [2] is intended to benefit the putative

plaintiff, and [3] is not foreclosed by express provision or other specific evidence

from the statute itself.” Id. at 108 (citations and internal quotation marks omitted).

Plaintiffs’ claim falters at the third prong of this test, because § 310 of the FDCA

expressly states that all proceedings to enforce that statute “shall be by and in the

name of the United States.” 21 U.S.C. § 337(a). Because Plaintiffs’ § 1983 claim

on this score is an attempt to use § 1983 to create a federal damages remedy to

enforce the requirements of FDCA § 564, it is “foreclosed ‘by express provision’”

of the FCDA. Golden State Transit, 493 U.S. at 108 (citation omitted).

b. Plaintiffs allege a separate § 1983 claim based on the contention that, by

violating Plaintiffs’ alleged fundamental right to refuse experimental medical

treatment, the challenged orders deprived them of the “privileges or immunities of

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citizens of the United States.” U.S. Const. amend. XIV, § 1. Plaintiffs concede

that this claim is foreclosed by the narrow construction of the Privileges or

Immunities Clause adopted in the Slaughter-House Cases, 83 U.S. 36 (1873), and

that was left undisturbed by McDonald v. City of Chicago, 561 U.S. 742, 758

(2010) (“We . . . decline to disturb the Slaughter-House holding.”). Consistent

with this binding precedent, we conclude that this claim fails as a matter of law.

c. Plaintiffs assert a similar § 1983 claim based on the same asserted

underlying fundamental right, but this time based on the doctrine that the

Fourteenth Amendment’s Due Process Clause provides “substantive” protection

for certain “fundamental rights that are not mentioned anywhere in the

Constitution.” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 237 (2022).

We need not decide whether his theory is viable, because even assuming that it is,

Governor Brown and Director Allen are entitled to qualified immunity.

“Qualified immunity attaches when an official’s conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (citation

omitted). For a constitutional right to be clearly established, “existing precedent

must have placed the . . . constitutional question beyond debate.” Mullenix v.

Luna, 577 U.S. 7, 12 (2015) (emphasis added) (citation omitted). “It is the

plaintiff[s] who bear[] the burden of showing that the rights allegedly violated

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were clearly established.” Shafer v. County of Santa Barbara, 868 F.3d 1110,

1118 (9th Cir. 2017) (citations and internal quotation marks omitted). Plaintiffs

have not carried that burden.

Plaintiffs acknowledge that, in 1905, the Supreme Court rejected a

constitutional challenge to a set of provisions that, taken together, imposed a

monetary fine on any adult inhabitant of Cambridge, Massachusetts who refused to

receive the smallpox vaccination. Jacobson v. Massachusetts, 197 U.S. 11, 12–13

(1905). Plaintiffs nonetheless contend that Jacobson is distinguishable and that

this case is instead clearly governed by subsequent Supreme Court authority that

they contend establishes a fundamental right to “refus[e] unwanted medical

treatment,” Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278 (1990),

and to resist the “forcible injection of medication into a nonconsenting person’s

body,” Washington v. Harper, 494 U.S. 210, 229 (1990). Plaintiffs assert that

Jacobson is plainly inapplicable, in their view, for three reasons: (1) smallpox was

much more lethal than Covid is; (2) smallpox vaccines had a much more well-

documented and superior record of effectiveness in preventing the spread of

disease than is true for the Covid vaccines; and (3) the Covid vaccines are

associated with a higher rate of adverse side-effects. Plaintiffs also argue that

principles of international law recognized at the Nuremberg trials reaffirm the

asserted fundamental right invoked by Plaintiffs here.

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But even if one assumes arguendo that Jacobson is distinguishable and that

there is arguably some support for the right to refuse forced medication that

Plaintiffs posit, Plaintiffs still fall short of carrying their burden here. As we have

explained, Plaintiffs’ burden is to show that existing precedent at the time of the

challenged orders made clear “beyond debate” that those orders’ vaccination

requirements were invalid. Mullenix, 577 U.S. at 12 (emphasis added) (citation

omitted). At best, the validity of these vaccine mandates under the principles

discussed in Jacobson, Cruzan, and related cases is debatable, as reflected by the

number of decisions that have rejected Plaintiffs’ position. See, e.g., Lukaszczyk v.

Cook County, 47 F.4th 587, 603 (7th Cir. 2022); We the Patriots USA, Inc. v.

Hochul, 17 F.4th 266, 293–94 (2d Cir. 2021). We need go no further to resolve

this case. Governor Brown and Director Allen are entitled to qualified immunity.

4. Plaintiffs also challenge the chief district judge’s denial of their motion

for recusal of the (different) assigned judge who decided their case. Plaintiffs

contend that, because the assigned judge had posted a sign outside his courtroom

stating, “Do Not Enter Unless You Have Been Fully Vaccinated,” his impartiality

in this matter “might reasonably be questioned” and his disqualification was

therefore mandatory under 28 U.S.C. § 455(a). Reviewing for an abuse of

discretion, United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012), we

affirm the chief judge’s denial of this motion.

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The apparent premise of Plaintiffs’ argument is that this posted notice

indicated that the assigned judge had personally adopted a mandatory

administrative requirement the validity of which would necessarily turn on the

same legal and constitutional issues that he was being asked to decide here. But as

the chief judge noted, the factual premise of Plaintiffs’ argument is wrong. By its

terms, the posted notice, which asked unvaccinated individuals to call the

chambers number for assistance, did not mandate anything and did not say what

accommodations would or would not be made if and when such individuals

inquired of chambers. Indeed, in order to accommodate Plaintiffs in this case, the

assigned judge took down the sign and freely permitted any member of the public

to attend the hearings. Because the posted sign thus did not reflect a mandatory

policy comparable to the challenged orders here and would not necessarily be

governed by the same legal principles at issue in this case, the chief judge did not

abuse his discretion in concluding that the assigned judge’s impartiality could not

reasonably be questioned.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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