Petition for Writ of Certiorari — Edward Walton, Petitioner v. Booz Allen Hamilton Holding Corporation, et al.

Appendix A

©uitetr States? Court of Appeals?

Jfor tlje fiisfyti) Circuit

No. 24-2473

Edward Walton

Plaintiff- Appellant

v.

Booz Allen Hamilton Holding Corporation; Booz Allen Hamilton, Inc.; Liberty IT

Solutions, LLC; Horacio Rozanski, CEO, Booz Allen Hamilton, Inc.; Scott

Anthony Hanawalt, CEO, Liberty IT Solutions, LLC, Sr./Vice President, Booz

Allen Hamilton, Inc.; Amanda Joan Beylo, HR

Defendants - Appellees

Appeal from United States District Court for the

Western District of Missouri - Springfield

Submitted: January 8, 2025

Filed: January 14, 2025

[Unpublished]

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

PER CURIAM.

la

Edward Walton appeals the district court’s1 order dismissing his pro se

employment-related action. After careful review of the record and the parties’

arguments on appeal, we find no basis for reversal. See Cook v. George’s, Inc..

952 F.3d 935, 938 (8th Cir. 2020) (standard of review). Accordingly, we affirm.

See 8th Cir. R. 47B.

i The Honorable Brian C. Wimes, United States District Judge for the

Western District of Missouri.

2a

Appendix B

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF MISSOURI SOUTHERN DIVISION

EDWARD WALTON,

)

)

Plaintiff,

)

)

V.

)

.

Case No. 6:23-CV-03196-BCW

)

BOOZ ALLEN HAMILTON HOLDING

CORPORATION, et al.,

)

)

)

Defendants.

)

ORDER

Before the Court Defendants’ Motion to Dismiss Plaintiffs Amended Complaint.

(Doc.

#40). The Court, being duly advised of the premises, grants said motion.

BACKGROUND

Plaintiff Edward Walton, pro se, alleges employment discrimination stemming

from his former employer’s implementation of a vaccine requirement after

Executive Orders 14042 and 14043 requiring vaccination against COVID-19 for

federal employees and contractors.

Walton filed the original complaint on June 30, 2023 (Doc. #1), and an

amended complaint on October 16, 2023 (Doc. #29). Though, in general, an amended

complaint supersedes the original complaint, the Court refers to exhibits attached to

the original complaint not otherwise attached to the amended complaint. Sob la fly y.

Eagle Forum, 970 F.3d 924, 933 (8th Cir 2020) (amended complaint renders original

complaint without legal effect). This approach serves two functions: first, this

3a

approach takes into account Walton’s pro se status and affords liberal construction

to the allegations of the amended complaint; and second, this approach provides the

Court with the necessary context for Walton’s substantive claims. Erickson v,

Pardus, 51 U.S. 89, 94 (2007).

Moreover, the exhibits attached to Walton’s original complaint like the Equal

Employment Opportunity Commission (EEOC) Charge, Notices of Right to Sue, and

other administrative findings are public record and may be properly considered in

the context of a motion to dismiss without converting the motion into one for

summary judgment. Blakley v. Schlumberger Tech. Corp.. 648 F.3d 921, 931 (8th

Cir. 2011).

With all reasonable factual inferences drawn in Walton’s favor for purposes of the

instant motion to dismiss, the factual basis underlying Walton’s claims for

employment discrimination is as follows.

In January 2017, Walton was hired to work as a Cache Developer for Defendant

Liberty IT Solutions (“Liberty”). Liberty provides information technology and

support to government agencies on health-related projects. Walton worked remotely

100% of the time.

Sometime in 2021, Booz Allen Hamilton, Inc. acquired Liberty. During the

period relevant to Walton’s claims, Liberty was integrating into Booz Allen

Hamilton, Inc. This integration was ongoing until April 2022.

On September 9, 2021, President Biden issued Executive Order 14042,

“Executive Order on Ensuring Adequate COVID Safety Protocols on Federal

Contractors.” As contractor for the federal government, EO 14042 applied to

Liberty. Therefore, in Fall 2021, Liberty implemented as a condition of employment

that its employees either provide proof of complete vaccination against. COVID-19 or

request an accommodation or exemption based on disability or religious belief.

Liberty first established November 22, 2021 as the deadline by which its employees

would comply with this vaccination requirement, but Liberty later extended the

deadline to March 31, 2022.

On October 1, 2021, Scott Hanawalt, President of Liberty IT Solutions, a Booz Allen

Company, requested that Liberty employees provide proof of vaccination against.

COVID-19 or request an accommodation as a condition of employment. On October

6, 2021, Liberty s Director of Human Resources, Amanda Beylo, emailed employees

that they were to provide supporting documentation” of their vaccination status.

4a

On October 13, 2021, Beylo sent another email to Liberty employees explaining the

vaccine requirement.

On November 8, 2021, Walton emailed Beylo and Hanawalt a “Cease and

Desist Notice.” In this email, Walton indicated his belief that EO 14042 and 14043

requiring COVID-19 vaccinations for federal employees, represented executive

branch overreach and violated the Nuremburg Code. Further, Walton indicated his

belief that the information Liberty requested from its employees to comply with EO

14042 was discriminatory and in violation of the federal Genetic NonDiscrimination Act (“GINA”). Walton thus requested that Liberty cease and desist

from coercing him into reporting his COVID-19 vaccination status. The email

requested a response by November 10, 2021 by 2 p.m. (Doc. #29).

On November 10, 2021, Beylo emailed Liberty employees that January 4,

2022 was the deadline by which they should provide proof of vaccination or request

an accommodation.

On November 15, 2021, Hanawalt responded to Walton’s email stating “we

respect each employee’s personal decision about the vaccine” but as a contractor for

the federal government, Liberty is required to satisfy all applicable legal

requirements, “including ensuring all government contractor employees are fully

vaccinated, except those employees who are legally entitled to an exemption as a

result of a disability or sincerely held religious belief.” (Doc. #29 at 13). Additionally,

Hanawalt indicated the request for proof of vaccination and/or request for

accommodation based on disability or religion were a condition of employment.

Hanawalt attached to the email a booklet called “Frequently Asked Questions:

COVID-19 Vaccines.”

On November 16, 2021, Walton made an initial inquiry with the EEOC

asserting discrimination based on genetic information, family medical hi story, or

participation in genetic services like counseling, education, or testing. (Doc. #1-4 at

5). In the inquiry, Walton identified the following as adverse actions: (1) Hanawalt’s

October 1, 2021 email that vaccination or accommodation was a condition of

employment; (2) Beylo s October 6, 2021 email that employees were required to

provide documentation of their medical history; and (3) Hanawalt’s November 15,

2021 email responding to Walton’s “cease and desist” email that the request for

family medical history was a condition of employment. (Doc. #1-4 at 5-6).

On December 22, 2021, Beylo requested the required vaccine information

from Walton. On December 27, 2021, Derrick Wilson, Liberty Project Manager,

emailed Walton to request the required vaccine information. The next day, Walton

5a

responded to Wilson’s email that requesting medical and genetic information from

employees is discrimination based on GINA, and Walton had already indicated the

same to the HR department. Wilson thanked Walton for contacting HR.

On the same day, Walton responded to Beylo’s email that requesting medical

and genetic information from employees is discrimination based on GINA. Beylo

responded that she would like to speak to Walton by phone, but Walton said he was

unavailable.

The January 4, 2022 deadline by which Liberty employees were to submit

either proof of vaccination or request for accommodation came and went without

any action by Liberty. Walton therefore logged in and continued working remotely

as usual.

On February 21, 2022, Beylo emailed Liberty employees about transition

training relating to Booz Allen’s acquisition of Liberty.

On March 1, 2022, Walton received an email indicating that he needed to fill

out the 1-9 form that had been sent to his email inbox. On March 24, 2022, Walton

emailed Wilson for assistance locating the necessary 1-9 form. Wilson forwarded

Walton’s email to Beylo in HR.

On March 25, 2022, Beylo emailed Walton that she could not get in touch with him

through

Microsoft Teams, so she asked Walton to call her. On the same day, Beylo contacted

Walton on Teams and indicated she could not send the 1-9 form to him until he

provided the required proof of vaccination or request for accommodation. Walton

responded that requesting this information violates GINA. Beylo responded that

lawyers informed Liberty that the vaccination requirement does not violated GINA,

and she could send the correspondence with legal to Walton. Walton responded that

he would like to see the letter from the lawyers. He also indicated Beylo could send

him more information, but he had no intent to send the medical and genetic

information being requested. Three hours after this exchange, Walton emailed

Beylo that he had not yet received her email. Beylo responded she would send the

information to Walton by the end of the day.

On March 26, 2022, Beylo sent Walton the forms related to the vaccination

requirement and/or accommodation request. Beylo did not send any information or

letter indicating a legal opinion as to whether the vaccine requirement was

discriminatory or otherwise in violation of GINA. Beylo’s email stated that if Walton

6a

did not submit the requested information, “your last day will be 3/31 as one of these

options is a condition of employment with BAH.”

On March 27, 2022, Walton responded to Beylo’s email that the request for

genetic and medical information violates GINA. Walton informed Beylo that he had

made an appointment with the EEOC and intended to file an EEOC complaint

Walton reiterated that it would be best to contact him by email as opposed to by

phone.

On March 30, 2022, Beylo emailed Walton to ask whether he was available

for a phone call. On the same day, Beylo emailed Walton and others stating,

Thursday, March 31, 2022 will be your last day working with Liberty....” (Doc.

#29 at 14).

On March 31, 2022, Walton received an email stating as follows. “This letter

is to confirm your decision to resign rather than meet the Booz Allen Hamilton

requirements of [submitting medical and genetic information]. Therefore, your

employment with Liberty IT Solutions and Insperity PEO Services LP terminates

today and you will not continue on to BAH.” (Doc. #1-4).

Walton attached to the original complaint an EEOC Charge of Diacriminatjon

dated June 7, 2022. Because the scope of the Charge of Discrimination is material to

resolution of the pending motion, the Court summarizes the Charge here. The

Charge names Liberty as having discriminated against Walton beginning on March

31, 2022 based on “genetic information.” (Doc. #1-4). Walton stated the particulars

of the Charge as follows:

I have been employed by the above employer since January 23, 2017,

as a Cache Developer, until I was terminated on March 31, 2022.1 was

working at a satisfactory level, at the time I was forced to resign my

position, because I refused to provide my employer with my Covid-19

vaccine status which violates the laws guiding genetic inforrnation that

an employer can ask for from an employee. I received several

harassing emails from the company concerning this matter, requesting

that they stop sending them, which they did not. I believe that I was

forced to resign my position due to my employer asking for my genetic

information which is against the Genetic Information

Nondiscrimination Act.

(Doc. #1-4 at 1).

Walton also filed an undated document identified as an “Addendum to the Charge ....”

7a

(Doc. #1-4). The Addendum states Walton noticed mistakes in the Charge and

provides the Addendum to correct those mistakes. The Addendum is a list of seven

items, summarized as follows:

1. Liberty IT Solutions LLC is a Booz Allen Company. It is owned by either

Booz Allen Hamilton Inc. or Booz Allen Holding Corporation. “Therefore,

the discrimination that occurred, the harassment and retaliation is laid

properly on both Liberty IT Solutions LLC and Booz Allen Hamilton

Holding Corporation and Booz Allen Holding Inc.”

2. Booz Allen Holding Corporation, Booz Allen Hamilton Inc. and Liberty IT

Solutions employ an estimated 32,000.

3. Defendants first discriminated against Walton when Hanawalt sent “the

first email” on

October 1, 2021.

4. Defendants claim Walton was “forced to resign [his] position” because he

refused to provide information to Defendants about his COVID-19 vaccine

status. However, Walton asserts he did not resign but found out he was no

longer employed when he tried to log on as usual on April 1, 2022 and was

unable to access Defendants’ systems. Walton called HR and found out he

was fired because of his refusal to comply “with the illegal order of

providing [his] employer with my Covid-19 vaccine status.”

5. Walton asserts that when he filed his Charge with the EEOC, he provided

“pages and pages of harassment charges.” However, this information is

not reflected in the Charge, and it is unclear why these facts are not

8a

included in the Charge. Walton asserts “[i]t is definitely a part of the

discrimination and I expect it to be part of my files.”

6. Walton asserts he has requested information from the EEOC using a

Section 83 request. When the information is received, he will provide it to

Defendants as appropriate.

7. Walton asserts he requested a Right to Sue letter from the MCHR but has

yet to receive

it.

(Doc. #1-4 at 3). Walton also attached to the original complaint an EEOC Right-toSue Notice issued on March 29, 2023. (Doc. #1-3 at 1). The EEOC Notice states

your lawsuit must be filed within 90 days of your receipt of this notice. Receipt

generally occurs on the date that you (or your representative) view this document ”

(Doc. #1-3 at 1).

Additionally, Walton s “Exhibit E” to the original complaint is a notarized

statement that Walton did not open the email containing the EEOC Notice until

April 19, 2023; therefore, Walton asserts his filing deadline was July 8, 2023.

Walton attached to the amended complaint a Right-to-Sue Notice from the

Missouri Commission on Human Rights that is dated September 8, 2023. (Doc. #293). The MCHR Notice states “[t]his letter indicates your right to bring a civil action

within 90 days of this notice against the respondent(s) named in the complaint.

This must be done within 90 days of the date of this notice or your right to sue is

lost.” (Doc. #29-3 at 1).

Based on the foregoing, Walton alleges the following claims against Defendants

Booz

Allen Hamilton Holding Corporation; Booz Allen Hamilton, Inc.; Liberty; and

Hanawalt. (Doc.

#29). Walton asserts claims against Defendants arising under Title VII of the Civil

Rights Act of

1964, 42 U.S.C. §§ 2000e, et seq. (“Title VIF); Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12112-12117; other federal law stated as “42 USC 2000fi” “42

9a

USC 2000ff-ll and all GINA related laws, CRFs on “coercion”; and the Missouri

Human Rights Act, Mo. Rev. Stat. § 213.055. In sum, Walton alleges Defendants are

liable for employment discrimination based on religion, disability or perceived

disability, for discrimination and violation of GINA by requesting genetic

information from its employees and retaining that information, and for coercing

employees to participate in a vaccine experiment without informed consent.

On November 13, 2023, Defendants filed the instant motion to dismiss

Walton’s claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (Doc. #40#41). Walton filed opposition suggestions (Doc. #42), and Defendants filed a reply

(Doc. #44).

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Fed. R. Civ. P. 12(b)(6)). Factual

allegations in the complaint must be sufficiently alleged to raise a right to relief

above the speculative level. Bell Atlantic Corp., et al,

y. Twombly, 550 U.S. 544, 554-55 (2007). When ruling on a motion to diHmias, the

Court must accept as true all of the complaint’s factual allegations and view them

in the light most favorable to the [nonmoving party]” and must also draw all

reasonable inferences in favor of the nonmoving party. Stodghill y. Wellston Sch.

Digt-, 512 F. 3d 472, 476 (8th Cir. 2008) (citations omitted). However, the Court

need not accept as true legal conclusions couched as factual allegations. Iqbal,

556 U.S. at 678.

ANALYSIS

Defendants Booz Allen Hamilton Holding Corporation, Booz Allen Hamilton, Inc., Liberty

IT Solutions LLC, and Scott Hanawalt seek dismissal of Walton’s claims for four

reasons. First, Defendants argue Walton’s claims should be dismissed, at least in

part, for failure to exhaust administrative remedies. Defendants argue Walton did

not exhaust administrative remedies as to his claims of religious or disability

discrimination under Title VII, the ADA, or the MHRA, nor did he exhaust

administrative remedies as to any defendant except Liberty. Second, Defendants

argue Walton’s claims should be dismissed as not timely filed. Third, Defendants

10a

argue Walton’s amended complaint fails to state a claim upon which relief can be

granted as a matter of law.

Finally, Defendants argue at least Hanawalt must be dismissed as a defendant from

this suit because Title VII, the ADA, the MHRA, and/or GINA do not impose

liability against an individual defendant. (Doc. #41).

A. Defendants’ Motion to Dismiss Walton’s Amended

Complaint for Failure to Exhaust Administrative

Remedies is Granted in Part and Denied in Part.

Walton administratively exhausted his GINA claims

against Liberty, Booz Allen Hamilton Holding

Corporation, and Booz Allen Hamilton, Inc.

Defendants argue Walton’s claims for employment discrimination based on

religion and disability under Title VII, the ADA, and the MHRA are subject to

dismissal because Walton did not exhaust his administrative remedies as to these

claims. In addition, Defendants argue Walton’s claims, no matter their substantive

basis, are subject to dismissal for failure to exhaust administrative remedies as to

Booz Allen Hamilton Holding Corporation, Booz Allen Hamilton, Inc., and

Hanawalt. The dispositive issue for both arguments is the scope of Walton’s

administrative Charge of Discrimination.

Title VII and the ADA require a plaintiff to, before filing a civil lawsuit in

federal court, exhaust his or her administrative remedies by filing a complaint with

the EEOC. Voss v, Hous, Auth. of the Citv of Magnolia, Ark.. 917 F.3d 618, 623 (8th

Cir. 2019). The MHRA also requires a plaintiff to exhaust his or her administrative

remedies by filing a complaint with the MCHR. Henson v. Union Pac, R.R.. 3 F.4th

1075, 1080 (8th Cir. 2021).

Though administrative charges are liberally construed, the Court “will not

invent, ex nihilo, a claim that was not made before the relevant agency.” Weatherly

v. Ford Motor Co., 994 F.3d 940, 944 (8th Cir. 2021). The administrative charge is

properly construed to include “those claims specifically raised and those that are

‘like or reasonably related to the administrative charges .. .

.” Id. “The key is that the scope of a judicial complaint can be no broader than the

scope of the EEOC investigation that ‘could reasonably be expected to grow out of

the charge’ in the EEOC complaint.” Id. at 944-45. Essentially the same standard

applies under the MHRA: “the scope of the civil suit may be as broad as the scope of

the administrative investigation which could reasonably be expected to grow out of

Ila

the charge of discrimination.” Farrow v, St. Francis Med. Ctr., 407 S.W.3d 579, 594

(Mo. 2013).

In this case, the Charge of Discrimination dated June 7, 2022 names only

Liberty as allegedly engaged in discriminatory conduct. (Doc. #1-4 at 1). The

“particulars” of Walton’s claim as set forth in the charge, set forth in full above,

references only discrimination based on genetic information in violation of GINA.

(Doc. #1-4 at 1).

Defendants argue this Charge is sufficient to administratively exhaust

Walton’s claims of discrimination based on GINA against Liberty, but Walton has

not exhausted his administrative remedies as to any of his other claims as to any of

the other defendants.

In opposition, Walton argues he provided more information to the EEOC in

support of his Charge, but the EEOC failed to include this information in the

Charge. Walton otherwise asserts the Charge includes mistakes that require

correction. Summarized in relevant part, Walton asserts the following information

should have been included in the Charge: (1) Liberty is a Booz Allen Company,

therefore Booz Allen Hamilton, Inc. or Booz Allen Hamilton Holding Corporation

are responsible for the alleged discrimination; (2) the first instance of discrimination

occurred on October 1, 2021 when Hanawalt (now VP of Booz Allen) emailed the

vaccine requirement as a condition of employment; (3) Walton was “forced to resign”

which was a termination of employment; and (4) Walton is unaware of why all the

information he uploaded to the EEOC website was not included in the Charge. (Doc.

#1-4 at 3). Walton otherwise provided specific instances of email com muni nation a

from Beylo, Wilson, and Hanawalt relating to the vaccine requirement, eventually

leading to Beylo’s email on March 30, 2022 that Walton’s last day of employment

would be March 31, 2022. (Doc. #1-4 at 7-8).

In light of Walton’s pro se status and because the Charge should be liberally

construed, the Court considers the additional information provided by Walton that

he asserts was improperly excluded from the administrative charge through EEOC

oversight. Even considering this additional information, the Court cannot conclude

that Walton exhausted his administrative remedies as to claims arising under Title

VII, the ADA, or the MHRA, or that Walton exhausted his administrative remedies

to the extent he alleges discrimination based on religion or disability. The scope of

the Charge, even considering the additional information Walton provides, is

harassing emails and forced resignation after Walton refused to comply with bis

employer’s request for genetic information in violation of GINA. Despite the

12a

assertions, there is no basis in the Charge or additional information for the

conclusion that the administrative investigation would have reasonably included

exploration of discrimination under Title VII, the ADA, or the MHRA because the

Charge references GINA only. Moreover, the Charge, nor the additional

information, references religion or disability> so the administrative investigation

would not have extended to those areas. Defendants’ motion to dismiss for failure to

exhaust administrative remedies as to Walton’s claims under Title VII, the ADA,

and/or the MHRA is granted. Similarly, the motion to dismiss for failure to exhaust

administrative remedies as to Walton’s allegations based on religion or disability is

granted.

By contrast, however, though the Charge names only Liberty, this entity is

referenced as a “Booz Allen Company,” and during the period relevant to Walton’s

claims, Liberty was in the process of being acquired by either Booz Allen Hamilton

Holding Corporation and/or Booz Allen

Hamilton, Inc. Because the corporate relationship among these entities is not

entirely apparent, and Liberty, named in the Charge, undoubtedly has some

association with Booz Allen Hamilton Holding and/or Booz Allen Hamilton, Inc.,

Defendants motion to dismiss Walton’s claims for failure to exhaust administrative

remedies as to Booz Allen Hamilton Holding and/or Booz Allen Hamilton, Inc. is

denied.

This ruling does not extend to Hanawalt, however, even though he is

referenced relative to the Charge as an officer of Liberty and/or the Booz Allen

companies. Notwithstanding the rulings above, any allegations against Hanawalt as

an officer of Liberty and/or the Booz Allen companies under Title VII, the ADA,

and/or the MHRA are imputed to the entity defendants because individual liability

does not arise under these statutory schemes. McCollough v. Univ, of Ark. For Med,

Sciences, 559 F.3d 855, 960 (8th Cir. 2009) (individual employees not personally

liable under Title VII); Lyons v. Drew, No. 14-0510-CV-W-ODS, 2015 WL 1198081,

at *2 (W.D. Mo. March 16, 2015) (collecting cases within the Eighth Circuit finding

the ADA would not impose individual liability); Mo. Rev. Stat. § 213.010(8)(c)

(definition of “employer” excludes individuals).

Similarly, GINA incorporates Title VII’s definition of an employer. 42 U.S.C.

§ 2000ff(2)(B)(i). Because this definition has been interpreted to exclude liability

against an individual under Title VII, the same applies under GINA - no individual

liability arises. Bumphus v, UniQue Pers. Consultants. Case No. 16-CV-312-SMYSCW, 2018 WL 1565609, at *4 (S.D.

13a

Ill. Mar. 30, 2018); Harrison v. Citv of Baton Rouge-Parish of E. Baton Rouge, Civil

Action No. 17-487-JWD-RLB, 2019 WL 1757553, at *3 (M.D. La. Apr. 3, 2019),

report and recommendation adopted 2019 WL 1756534 (M.D. La. Apr. 19, 2019);

Gray v, Brent, No. 7:13-CV-198-BR, 2014

WL 1327011, at *3 (E.D.N.C. Apr. 2, 2014); Wright v. StoneMor Partners LLP, No.

3:12-cv-380,

2012 WL 4006120, at *2 (W.D.N.C. Sept. 12, 2012).

Consequently, the administrative investigation would not have reasonably

included investigation into any individual acts by Hanawalt. Defendants’ motion to

dismiss for failure to exhaust administrative remedies as to Hanawalt is granted.

In sum, Defendants’ motion to dismiss for failure to exhaust administrative

remedies is granted in part and denied in part. The motion is granted on Walton’s

claims alleged in the amended complaint for relief under Title VII, the ADA, and/or

the MHRA for failure to exhaust administrative remedies. The motion is granted on

Walton’s claims for discrimination based on religion and/or disability for failure to

exhaust administrative remedies. The motion is granted as to Hanawalt for failure

to exhaust administrative remedies. The motion is denied as to failure to exhaust

administrative remedies with respect to Liberty, Booz Allen Hamilton Holding

Corporation and/or Booz Allen Hamilton, Inc. Stated differently, only Walton’s

allegations arising under GINA against Liberty, Booz Allen Hamilton Holding

Corporation, and Booz Allen Hamilton, Inc. are properly considered by this Court as

administratively exhausted.

Based on these rulings, the Court considers the remainder of Defendants’

motion to dismiss only as to Walton’s claims for discrimination under GINA as to

Liberty, Booz Allen Hamilton

Holding Corporation, and/or Booz Allen Hamilton, Inc.

B. Defendants* Motion to Dismiss for Failure to Timely

File the Complaint is Denied.

Defendants argue Walton’s claims must be dismissed because they were not

filed within 90 days of his receipt of the EEOC Right-to-Sue Notice. In opposition,

Walton argues the original complaint was timely filed on June 30, 2023, which is

within 90 days of when he opened the email and read the EEOC Notice on April 19,

2023.

14a

The EEOC Notice was issued on March 29, 2023. (Doc. #1-3 at 1). Walton’s

original complaint was filed in this Court on June 30, 2023. (Doc. #1). Therefore,

Walton filed his complaint 93 days after the date of issuance for the EEOC Notice.

A civil suit flowing from an EEOC Charge “must be filed WITHIN 90 DAYS

of your receipt of this notice. Receipt generally occurs on the date that you (or your

representative) view this document.” (Doc. #1-3 at 1). This 90-day timpframp is set

forth in 42 U.S.C. § 2000e-5(f)(l) and 29 C.F.R. § 1614.407(a). “This ninety-day

period constitutes a limitations period that bars a suit that is not filed within that

time.” Hales v. Casey’s Mktg, Co,, 886 F.3d 730, 736 (8th Cir. 2008).

Defendants argue Walton concedes he received the EEOC Notice on the samp

day it was issued, March 29, 2023, and the 90-day limitations period is triggered by

receipt of the Notice. Therefore, Defendants argue Walton’s complaint was filad 3

days out of time.

While Defendants argue Walton concedes he received the email from the

EEOC on the same date that it was issued, the Court does not find such an

admission in the record at the locations identified by Defendants, and the record

does not otherwise indicate the date on which Walton received the EEOC Notice by

email. Instead, Walton attached to the original complaint a notarized statement in

which he indicates that he received an email from the EEOC sometime before April

18, 2023, and he did not open or read the right to sue notice until April 19, 2023.

(Doc. #1-3 at 3).

Defendants cite Lax v. Mavorkas to argue that the limitations period is

triggered by a plaintiffs receipt of a right to sue notice, even if the plaintiff does not

actually read the right to sue notice until later. 20 F.4th 1178 (7th Cir. 2021).

Consistent with this persuasive authority, the 90day limitations period is not

triggered by the date on which the plaintiff accesses and reads the right to sue

notice; rather, the limitations period is triggered by the date on which the notice is

received by the aggrieved party. Id. Under the circumstances presented here, then,

the limitations period for Walton’s discrimination claims was triggered sometime

between March 29, 2023 (the date of issuance for the EEOC Notice) and April 19,

2023 (the date Walton opened the email from the EEOC).

Where the 90-day filing deadline is triggered by Walton’s receipt of the EEOC

email, and the receipt must have occurred sometime between March 29, 2023 and

April 19, 2023, the Court cannot definitively say that Walton’s June 30, 2023

complaint was filed outside the 90-day window. Though the Court is cognizant thia

15a

conclusion relies in part on Walton’s self-serving statements that are unsupported

by documentary proof, even under the authority cited by

Defendants, the 90-day limitations period is triggered by Walton’s receipt of the

EEOC email. Because it is unclear when Walton received the email, the triggering

date for the 90-day limitations period is also unclear. On this basis, the Court

denies Defendants motion to dismiss. Walton’s claims on the basis that they were

untimely filed.

C. Defendants* Motion to Dismiss Walton’s Amended

Complaint for Failure to State a Claim is Granted.

As set forth above, the Court considers Walton’s substantive allegations only

to the extent they are administratively exhausted. Therefore, the Court considers

whether Walton’s amended complaint plausibly alleges discrimination under GINA

against Liberty, Booz Allen Hamilton Holding Corporation, and Booz Allen

Hamilton, Inc.

Defendants argue the amended complaint does not plausibly allege

discrimination or other violations of GINA against Liberty, Booz Allen Hamilton

Holding Corporation, or Booz Allen Hamilton, Inc. (“hereinafter, “Defendants”).

(Doc. #41 at 17). In opposition, Walton argues the amended complaint sets forth

sufficient factual allegations to support a claim for GINA discrimination because

Defendants harassed him and required him to resign when he refused to provide

genetic information.

“GINA prohibits an employer from discriminating or taking adverse actions

against an employee because of genetic information . .. .” Ortiz v. Citv of San

Antonio Fire Dep’t, 806 F.3d 822, 826 (5th Cir. 2015) (citing 42 U.S.C. § 2000ffl(a)(l), (2)). Additionally, GINA provides that an employer may not “request,

require, or purchase” the genetic information of any employee or any of the

employee’s family members. Id. (citing 42 U.S.C. § 2000ff-l(b)). GINA provides for a

private right of action and incorporates Title VII’s enforcement scheme. Id. (citing

42 U.S.C. § 2000ff-6(a)(l).

Under GINA, “genetic information” means information about genetic tests

and/or about “the manifestation of a disease or disorder” in an employee and/or hia

or her family members. 42

U.S.C. § 2000ff(4)(A); 29 C.F.R. § 1635.3(c). “Genetic test” “means an analysis of

human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes,

16a

mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7)(A). This definition does

not include “analysis of proteins or metabolites that does not detect genotypes,

mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7)(B). Moreover, an

employer does not violate GINA through the use or disclosure of medical

information that is not genetic information about a manifested disease, even if the

disease has a genetic basis. 42 U.S.C. § 2000ff-9.

With all reasonable factual inferences drawn in Walton’s favor for purposes of

Defendants’ motion to dismiss, Walton alleges Defendants are liable for

discrimination under GINA because they required him to provide genetic

information as a condition of his continued employment. The dispositive issue for

whether Walton states a claim is whether Defendants’ request for proof of

vaccination against COVID-19 is a request for genetic information. Walton posits

that the COVID19 vaccine impacts the recipient’s genetic code; therefore, Walton

alleges Defendants’ requirement that employees provide proof of vaccination

amounts to a request for genetic information in violation of GINA. However,

Defendants’ request for proof of vaccination does not equate to a request for

information about genetic tests including the analysis of “DNA, RNA, chromosomes,

proteins or metabolites, that detects genotypes, mutations, or chromosomal

changes.” 42 U.S.C. § 2000ff(7)(B). Defendants’ request for proof of vaccination by

record card, immunization record, medical record, or any other official

documentation, or in the alternative a request for accommodation or exemption, is

not a request for genetic information because Defendants are not seeking or

retaining information about employees’ DNA, RNA, chromosomes, proteins, or

metabolites, nor genotypes, mutations, or chromosomal changes. (Doc. #42-2 at 2

n.4).

Consequently, Walton does not plausibly allege a claim for discrimination under

GINA.

This conclusion is bolstered by EEOC guidance on this very issue.

K.15. Is Title II of GINA implicated when an employer requires

employees to provide documentation or other confirmation

that they received a vaccination from a health care provider

that is not affiliated with their employer (such as from the

employee’s personal physician or other health care provider, a

pharmacy, or a public health department)? (Updated 10/13/21).

No. An employer requiring an employee to show documentation or

other confirmation of vaccination from a health care provider

17a

unaffiliated with the employer, such as the employee’s personal

physician or other health care provider, a pharmacy, or a public health

department, is not using, acquiring, or disclosing genetic information

and, therefore, is not implicating Title II of GINA. This is the case even

if the medical screening questions that must be asked before vaccination

include questions about genetic information, because documentation or

other confirmation of vaccination would not reveal genetic information.

Title II of GINA does not prohibit an employee’s own health care

provider from asking questions about genetic information. This GINA

Title II prohibition only applies to the employer or its agent.

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation-actand-other-eeo-laws, K. 15.

As set forth in the EEOC guidance referenced above, Defendants’ request for

vaccine documentation does not implicate GINA because whether an employee is

vaccinated against COVID-19 is not genetic information. Consequently, Walton’s

allegations of GINA

discrimination against Defendants are insufficient as a matter of law pursuant to

Fed. R. Civ. P. 12(b)(6). Accordingly, it is hereby

ORDERED Defendants’ Motion to Dismiss Plaintiffs Amended Complaint (Doc. #40) is

GRANTED. Walton’s amended complaint is DISMISSED.

IT IS SO ORDERED.

DATED: June 21, 2024

/sZ-Brian C. Wimes----------JUDGE BRIAN C. WIMES

UNITED STATES DISTRICT COURT

18a

Appendix C

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEALTH FREEDOM DEFENSE

FUND, INC., a Wyoming Not-forProfit Corporation; JEFFREY

FUENTES; SANDRA GARCIA;

HOVHANNES SAPONGHIAN;

NORMA BRAMBILA;

CALIFORNIA EDUCATORS

FOR

MEDICAL FREEDOM,

Plaintiffs-Appellants,

No. 22-55908

D.C. No.

2:21-cv08688DSF-PVC

OPINION

v.

ALBERTO CARVALHO, in his

official capacity as

Superintendent of the Los

Angeles United 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,

Defendants-Appellees.

19a

Appeal from the United States District Court for the Central District of

California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted September 14, 2023

Seattle, Washington

Filed June 7, 2024

Before: Michael Daly Hawkins, Ryan D. Nelson, and Daniel P. Collins, Circuit

Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge R. Nelson;

Concurrence by Judge Collins;

Dissent by Judge Hawkins

SUMMARY*

COVID-19/Mootness

The panel vacated the district court’s order dismissing plaintiffs’ action alleging

that the COVID-19 vaccination policy of the Los Angeles Unified School District

(“LAUSD”)—which, until twelve days after oral argument, required employees to

get the COVID-19 vaccination or lose their jobs—-interfered with their fundamental

right to refuse medical treatment.

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

by court staff for the convenience of the reader.

The panel held that the voluntary cessation exception to mootness applied.

LAUSD’s pattern of withdrawing and then reinstating its vaccination policies was

enough to keep this case alive. The record supported a strong inference that LAUSD

waited to see how the oral argument in this court proceeded before determining

whether to maintain the Policy or to go forward with a pre-prepared repeal option.

LAUSD expressly reserved the option to again consider imposing a vaccine

mandate. Accordingly, LAUSD has not carried its heavy burden to show that there

is no reasonable possibility that it will again revert to imposing a similar policy.

20a

Addressing the merits, the panel held that the district court misapplied the

Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), in

concluding that the Policy survived rational basis review. Jacobson held that

mandatory vaccinations were rationally related to preventing the spread of

smallpox. Here, however, plaintiffs allege that the vaccine does not effectively

prevent spread but only mitigates symptoms for the recipient and therefore is akin

to a medical treatment, not a “traditional” vaccine. Taking plaintiffs’ allegations as

true at this stage of litigation, plaintiffs plausibly alleged that the COVID-19

vaccine does not effectively “prevent the spread” of COVID-19. Thus, Jacobson does

not apply.

Concurring, Judge R. Nelson wrote separately to point out that this Circuit’s

intervening case Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023) (en

banc), raises the question of whether the district court’s holding that the Los

Angeles Unified School District is entitled to sovereign immunity should be

revisited on remand.

Concurring, Judge Collins wrote separately to address a crucial point that the

district court overlooked. Pursuant to more recent Supreme Court authority,

compulsory treatment for the health benefit of the person treated—as opposed to

compulsory treatment for the health benefit of others— implicates the fundamental

right to refuse medical treatment. Plaintiffs’ allegations here are sufficient to invoke

that fundamental right. Defendants note that the vaccination mandate was imposed

merely as a “condition of employment,” but that does not suffice to justify the

district court’s application of rational-basis scrutiny.

Dissenting, Judge Hawkins wrote that because there is no longer any policy for this

court to enjoin, he would, as this court has done consistently in actions challenging

rescinded early pandemic policies, hold that this action is moot, vacate the district

court’s decision, and remand with instructions to dismiss the action without

prejudice.

COUNSEL

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

Diego, California; George R. Wentz, Jr., The Davillier Law Group LLC, New

Orleans, Louisiana; for Plaintiffs-Appellants.

Connie L. Michaels (argued), Littler Mendelson PC, Los Angeles, California; Carrie

A. Stringham, Littler Mendelson PC, San Diego, California; for DefendantsAppellees.

OPINION

21a

R. NELSON, Circuit Judge:

For over two years—until twelve days after argument— Los Angeles Unified School

District (LAUSD) required employees to get the COVID-19 vaccination or lose their

jobs. LAUSD has not carried its “formidable burden” to show that it did not

abandon this policy because of litigation, and thus that “no reasonable expectation

remains that it will return to its old ways.” Cf. FBI v. Fikre, 601 U.S. 234, 241

(2024) (cleaned up). So this case is not moot. See id. On the merits, the district

court misapplied the Supreme Court’s decision in Jacobson v. Massachusetts, 197

U.S. 11 (1905), stretching it beyond its public health rationale. We vacate the

district court’s order dismissing this claim and remand for further proceedings

under the correct legal standard.

I

This case is about LAUSD’s COVID-19 vaccination policy. LAUSD has reversed

course several times. Because of its importance to the mootness issue, we recount

that history in detail.1

LAUSD issued its first policy on March 4, 2021. That policy was challenged two

weeks later in a lawsuit filed by Plaintiff California Educators for Medical Freedom

(CEMF) and several individual plaintiffs. According to CEMFs complaint,

LAUSD’s policy required employees to get the

COVID-19 vaccine, no exceptions. The March 4 memorandum announcing thia

policy was attached to the complaint. This memorandum stated that employees

would “be notified to make an appointment through the District’s vaccination

program when it is their turn to get vaccinated.” See CEMF v. LAUSD, No. 21-cv02388, 2021 WL 1034618,

Dkt. 1, Ex. F at 1 (C.D. Cal. Mar. 17, 2021). It added that

“District employees may either participate in the District’s COVID-19 vaccination

program or provide vaccination documentation in the form of an official Vaccination

Record certified by a medical professional.” Id. For those who chose the latter

option, the memorandum provided instructions on how to “submit proof of

vaccination from an external medical provider through the LAUSD Daily Pass”

website. Id. It specified that “[c]urrent District employees will submit

1 We may properly take judicial notice that various statements were made in filings in related

litigation. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d

244, 248 (9th Cir. 1992). But we do not take those statements themselves as true. See Khoja v.

Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).

22a

documentation of COVID-19 vaccination through the Daily Pass web portal at

http://DailyPass.lausd.net as indicated in their vaccination notification.” Id. at 2.

The memorandum said nothing about an option to submit to COVID testing rather

than submitting vaccine verification.

The very next day after CEMF filed suit, LAUSD reversed course and issued a

“clarifying memorandum” that gave employees an option to test for COVID-19 if

they did not want to get the vaccine. Relying on this clarifying memorandum, which

LAUSD claimed did not impose “mandatory vaccinations,” LAUSD moved to dismiss

CEMFs suit because, among other things, it was “moot and/or premature.” LAUSD

disputed whether CEMF had adequately pleaded that exemptions would not be

allowed.

But LAUSD did not dispute CEMFs contention that the March 4 memorandum was

properly construed “as requiring District employees to be vaccinated.” Instead,

LAUSD argued that, considering the March 18 “clarifying memorandum” allowing a

testing alternative—issued after the lawsuit was filed—the case was moot or

unripe. CEMF argued that the complaint properly alleged that a mandatory policy

was in place when the suit was filed, and that the postfiling clarifying memorandum

could not establish mootness under the voluntary cessation doctrine. CEMFs

position was bolstered by its citation in the complaint to a letter from the LAUSD

employees’ union, which stated that “[a]ll District employees will be required to be

vaccinated,” and “[n]o exceptions have been made.” See CEMF, No. 21-cv2388, 2021

WL 1034618, Dkt. 1, Ex. G at 2. In its reply brief LAUSD shifted its position and

explicitly denied that the March 4 memorandum “reflects a mandatory vaccination

policy.” LAUSD argued that the March 18 memorandum was "merely a

clarification” of the “original March 4, 2021 memorandum.”

On July 27, 2021, the district court dismissed the complaint, holding that CEMFs

claims were not ripe. Noting that CEMFs amended complaint had cited the March

18 memorandum, the district court held that, considering the then-existing testing

option, “there is no threat of future injury because LAUSD explicitly stated it is not

requiring vaccines.” The court held that it was “completely speculative” whether

“LAUSD will begin to require vaccination of all employees at some point in the

future and will not offer exemptions” for the plaintiffs. The court acknowledged

CEMFs allegations about the March 4 policy memorandum. Still, the court held

that, because that policy was changed before it was ever enforced, the dispute

remained unripe. “That Defendants were contemplating requiring the vaccine, and

then later reversed course and explicitly said they would not be, does not create a

ripe case or controversy.”

23a

Having obtained dismissal of CEMFs suit on these grounds, LAUSD reversed

course again two weeks later. Its new policy (the Policy), adopted on August 13,

2021, expressly eliminated the testing option on which the district court’s July 27

dismissal had been based. The Policy required that all LAUSD employees be fully

vaccinated against COVID-19 by October 15, 2021. Like the earlier March 4

memorandum, the Policy required those who are vaccinated outside of LAUSD’s

own program to submit proof of vaccination through the “Daily Pass” web portal.

The Policy ostensibly provided for religious and medical exemptions. But each of

the individual plaintiffs here were allegedly denied accommodations, thus rendering

any exemptions “illusory.”

CEMF sued again, this time joined by Health Freedom Defense Fund, Inc. and new

individual plaintiffs (collectively, Plaintiffs). They named as defendants LAUSD

employees and Board members in their official capacities. Plaintiffs challenged the

Policy as violating the Fourteenth Amendment, among other claims. Only the

substantive due process and equal protection claims brought under 42 U.S.C. § 1983

are on appeal. Plaintiffs ask for future relief, including declaring the Policy

unconstitutional and enjoining LAUSD from requiring it.

Plaintiffs claim that the Policy interferes with their fundamental right to refuse

medical treatment. Their complaint’s crux is that the COVID-19 “vaccine” is not a

vaccine. “Traditional” vaccines, Plaintiffs claim, should prevent transmission or

provide immunity to those who get them. But the COVID-19 vaccine does neither.

At best, Plaintiffs suggest, it mitigates symptoms for someone who has gotten it and

then gets COVID-19. But this makes it a medical treatment, not a vaccine.

Plaintiffs’ complaint supports these assertions with data and statements from the

Centers for Disease Control and Prevention (CDC). For example, Plaintiffs claim

that the

CDC changed the definition of “vaccine” in September 2021, striking the word

“immunity.” Thus, they argue, the CDC conceded that the COVID-19 vaccine is not

a “traditional vaccine.” They also cite CDC statements that say the vaccine does not

prevent transmission, and that natural immunity is superior to the vaccine.

LAUSD moved for judgment on the pleadings,

requesting judicial notice of the attached CDC information. This included

information about the COVID-19 death count and number of cases, as well as the

vaccine’s safety and effectiveness. For example, the CDC says that “COVID-19

vaccines are safe and effective.”

24a

The district court granted LAUSD’s motion. Health Freedom Def. Fund v. Reilly,

No. CV-21-8688, 2022 WL 5442479, at *7 (C.D. Cal. 2022). The district court took

judicial notice of LAUSD’s attached documents. Id. at *2- 3. Then, applying a

rational basis review, the district court held that the Policy does not implicate any

fundamental right, id. at *5, and that LAUSD had a legitimate government purpose

in requiring the COVID-19 vaccination, id. at *6. The district court held that the

COVID-19 vaccine’s reduction in symptoms and prevention of severe disease and

death in recipients survived rational basis review, even if it did not prevent

transmission or contraction. Id.

The district court largely relied on Jacobson v. Massachusetts, 197 U.S. 11 (1905), in

concluding that the Policy survived rational basis review. Reilly, 2022 WL 5442479,

at *5-6. Plaintiffs argued that the COVID-19 vaccine is a “medical treatment” and

not a traditional vaccine. Id. at *5. The district court disagreed, holding that

“Jacobson does not require that a vaccine have the specific purpose of preventing

disease.” Id. (emphasis in original).

Plaintiffs appealed the district court’s order. In April 2023, LAUSD filed its

answering brief. It vigorously defended its vaccine mandate and did not raise any

suggestion that it might be revoked. We held oral argument on the morning of

September 14, 2023. The case was calendared together with two similar appeals

involving the rejection of challenges to vaccine mandates that had been imposed on

state employees by Oregon and Washington. But Oregon and Washington revoked

their mandates before the answering briefs were filed in those cases. They therefore

sought dismissal of the claims for prospective relief in those cases as moot.

LAUSD’s counsel was asked at oral argument about the contrast with those cases

and whether LAUSD could maintain the Policy indefinitely. LAUSD’s counsel

responded that the Policy was properly still in place because “there are Covid spikes

right now.” Counsel stated that LAUSD was “very concerned about maintaining the

health of [its] staff’ and believed that COVID vaccines should continue to be

required “until it is absolutely established that the vaccines have no effect.” When

again pressed about the contrast with the two other argued cases about vaccine

mandates, counsel stated that “with respect to what the district is going to do now,

what they’re considering doing now, there is only so much I can tell you, because it’s

not in the record.” Counsel then reaffirmed LAUSD’s view that “with respect to the

vaccination requirement, they have felt that until it is established that the vaccine

is not of use in any way that it is important to go ahead and maintain it.” LAUSD’s

counsel also repeatedly defended the constitutionality of its vaccine mandate.

25a

According to a declaration submitted by Plaintiffs’ counsel, LAUSD’s attorney

turned to him as they were leaving the courtroom and said, “What are you going to

do when we rescind the mandate?” That same day, LAUSD’s Superintendent (the

Superintendent) submitted to the LAUSD Board (the Board) of Education a

proposal to repeal the mandate.2 Twelve days later, (the Board) voted to rescind the

Policy by a six to one vote, with one abstention. This lawsuit was mentioned by

members of the public at the meeting of the Board. Indeed, one commenter played

excerpts from the publicly available audio recording of the oral argument, in this

court.2 The Superintendent submitted materials in support of repeal that stated

that, because the virus was no longer “spreading at a rapid enough pace to

overwhelm hospital systems,” LAUSD “no longer needfed] a COVID-19 vaccine

requirement to keep schools open for

2 Plaintiffs’ Motion for Judicial Notice is GRANTED in part and DENIED in part.

We take judicial notice that LAUSD voted to withdraw the Policy on September 26,

2023, and that various documents were submitted, and statements made, in

connection with that repeal. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90

(9th Cir. 2001). But we do not take judicial notice of the truth of the claims made in

such written or oral statements. Id.; see also Owino v. Holder, 771 F.3d 527, 534 n.4

(9th Cir. 2014) (denying request for judicial notice of article where “[t]he

government does not concede that the facts [included] are beyond dispute.”),

in-person learning.” They explained that “[t]he science [on vaccines] has not

changed” and they are still “safe and effective.” And they also cautioned that

LAUSD would continue to monitor COVID-19, and if “health conditions necessitate

a revisiting of the COVID-19 vaccine requirement,” LAUSD would reconsider the

Policy.

Comments made by LAUSD officials and Board

members at the meeting generally followed these statements. The one Board

member who voted against the repeal, Dr. McKenna, said he was “not afraid of

litigation” or the "zealousness that will come out with lawsuits” brought by

employees who lost their jobs. Meeting (59:20 -1:00:48). Likewise, Board President

Goldberg said that she had a “foot in [the] camp with Dr. McKenna.” Id. (1:13:12 1:15:12). While she acknowledged that the virus was now “endemic,” she also said

she did not regret imposing the mandate for “one moment, not 30 seconds, not one

2 LAUSD, September 26th, 2023 - 1pm Regular Board Meeting,

YOUTUBE (Sept. 26, 2023), httpe://www.youtube.com/watch?v=qQf_y77unZw (25:37-28:00)

(Meeting).

26a

tiny bit.” Id. (1:13:15-22). When the vote on the repeal was called, she voted,

"Reluctantly, yes.” Id. (1:18:23-26).

LAUSD then asked us to dismiss the appeal, claiming that the case is now moot.

Plaintiffs objected, arguing that LAUSD withdrew the Policy because they feared an

adverse ruling.

II

“Judgments on the pleadings are reviewed de novo.” George v. Pac.-CSC Work

Furlough, 91 F.3d 1227,1229 (9th Cir. 1996). We review under the same standards

as a motion to dismiss. Gregg v. Haw., Dep't of Pub. Safety, 870 F.3d 883, 887 (9th

Cir. 2017). So we must accept the plaintiffs’ alleged facts as true, whether “actual

proof’ of them is “improbable.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

If the parties provide competing but plausible explanations, the plaintiffs’ complaint

survives. Starr v. Baca, 652 F.3d 1202,1216 (9th Cir. 2011). Thus, we can affirm

for the moving party only if there are no material and unresolved facts, and the

plaintiffs’claims fail as a matter of law. George, 91 F.3d at 1229. Ill

We begin by analyzing whether this appeal is now moot because of LAUSD’s recent

policy reversal. Because LAUSD acted after this litigation was filed, we must

decide whether the voluntary cessation exception to mootness applies. See, e.g.,

Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 457 n.l (2017).

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Los Angeles County v. Davis, 440 U.S.

625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). But

generally, a party’s decision to stop the challenged conduct does not take away our

“power to hear and determine the case.” Id. (quoting United States v. W.T. Grant

Co., 345 U.S. 629, 632 (1953)).

Sometimes, however, voluntary cessation can moot a case. First, it must be

reasonably clear that the challenged practice will not happen again. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Second,

any effects of the alleged violation must be permanently reversed. Davis, 440 U.S.

at 631. This is a “formidable burden” and “holds for governmental defendants no

less than for private ones.” Fikre, 601 U.S. at 241.

LAUSD’s pattern of withdrawing and then reinstating its vaccination policies is

enough to keep this case alive. See Fikre v. FBI, 904 F.3d 1033, 1039 (9th Cir. 2018)

(“[A] claim is not moot if the government remains practically and legally free to

return to [its] old ways despite abandoning them in the ongoing litigation.” (citing

W.T. Grant, 345 U.S. at 632) (internal quotation marks omitted)). Twice LAUSD

has withdrawn its policy only after facing some litigation risk. LAUSD immediately

27a

rescinded its prior policy after some plaintiffs first sued, and LAUSD then asked the

district court to dismiss for mootness or ripeness. But then just two weeks after

securing a dismissal on those grounds, LAUSD implemented the Policy, which has

remained in effect for over two years.

We held oral argument on the morning of September 14, 2023, where LAUSD’s

counsel was vigorously questioned. That same day LAUSD submitted a report

recommending rescission of the Policy. Twelve days later, LAUSD withdrew the

Policy.

Litigants who have already demonstrated their willingness to tactically manipulate

the federal courts in this way should not be given any benefit of the doubt.

LAUSD’s about-face occurred only after vigorous questioning at argument in this

court, which suggests that it was motivated, at least in part, by litigation tactics.

See R. W. v. Columbia Basin Coll., 77 F.4th 1214, 1226 (9th Cir. 2023). For example,

in Columbia Basin College, we upheld a finding that the voluntary-cessationmootness burden had not been met. Id. We were persuaded by the district court,

which noted the defendants’ strategic timing of sending a letter purporting to moot

the case more than three years after litigation but only one month before moving on

mootness.

Id. Here too, LAUSD’s timing is suspect.

Rather than hold LAUSD to its “formidable burden,” see Fikre, 601 U.S. at 241, the

dissent consistently draws highly debatable inferences for LAUSD in evaluating

LAUSD’s actions in the two vaccine-related lawsuits filed against it. But federal

judges “are ‘not required to exhibit a naivete from which ordinary citizens are free.’”

Dep’t ofCom. v. New York, 588 U.S. 752, 139 S. Ct. 2551, 2575 (2019) (citation

omitted). Given the detailed procedural history summarized earlier, the record at

least supports a strong inference that LAUSD waited to see how the oral argument

in this court proceeded before determining whether to maintain the Policy or to go

forward with a pre-prepared repeal option. LAUSD appears to have twice sought to

manipulate the federal courts to avoid an adverse ruling on this issue. Moreover,

the Board expressly reserved the option to again consider imposing a vaccine

mandate. This confirms that LAUSD has not carried its heavy burden to show that

there is no reasonable possibility that it will again revert to imposing a similar

policy.

We must view any strategic moves designed to keep us from reviewing challenged

conduct with a “critical eye.” See Knox v. Serv. Emps. Inti Union, Loc. 1000, 567

U.S. 298, 307 (2012). Comments made by Board members

confirm that its policy rescission aimed to avoid litigation. For example, Dr.

McKenna—the sole Board member to vote against withdrawal of the Policy—

justified his vote because he was “not afraid of litigation” or the “zealousness that

28a

will come out with lawsuits” brought by employees who lost their jobs. Likewise,

Board President Goldberg said that she had a “foot in [the] camp” with Dr.

McKenna, and so “reluctantly” voted to rescind. These'comments show that the

Board was aware of, and responding to, the pending litigation. LAUSD therefore is

no longer entitled to any presumption of regularity.

The dissent disagrees, citing distinguishable cases involving challenges to COVID19 policies. We found in each case that the government entity did not intentionally

abandon its policy because of litigation risk but for other intervening reasons. See,

e.g., Brach v. Newsom, 38 F.4th 6,12 (9th Cir. 2022) ("The State did not rescind its

school closure orders in response to the litigation—the orders ‘expired by their own

terms’...”); McDonald v. Lawson, 94 F.4th 864, 869 (9th Cir. 2024) (“[N]othing in

the record. .. indicates that [the State’s assertion that it would not enforce the

challenged rule] was made in bad faith.” (citation omitted)); Seaplane Adventures,

LLC v. County of Marin, 71 F.4th 724, 732 (9th Cir. 2023) (given that California’s

state of emergency ended, “there is no indication that the County can or will

reimpose restrictions similar to those in effect at the very beginning of the

pandemic.”); Donovan v. Vance, 70 F.4th 1167, 1172 (9th Cir. 2023) (explaining that

because the vaccine mandate exemption was based on executive orders that no

longer exist, no relief is available). Indeed, this panel unanimously reached the

same conclusion about the withdrawal of the vaccine mandates imposed by Oregon

and Washington. See Johnson v. Kotek, 2024 WL 747022, at *1 (9th Cir. 2024)

(dismissing the claims for prospective relief as moot); Pilz v. Inslee, 2023 WL

8866565, at *1 (9th Cir. 2023) (same). As explained above, LAUSD’s actions do not

suggest the same intent as existed in these other cases. Here, unlike in Lawson, the

evidence shows that LAUSD acted at least partially in bad faith to avoid litigation

risk in again changing the Policy. And unlike in Seaplane Adventures, LAUSD has

shown that they “can or will reimpose” similar restrictions.

Thus, the voluntary cessation exception to mootness applies. See id.', see also Pub.

Utils. Comm’n of State of Cal.

v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (“in order for [the voluntary cessation]

exception to apply, the defendant’s [changed action] must have arisen because o/the

litigation.”

(emphasis in original)). This case is not moot.8 IV

We now turn to the merits. The district court held, applying rational basis review

under Jacobson, that the Policy satisfied a legitimate government purpose. But the

district court’s analysis diverges from Jacobson. We thus vacate the district court’s

opinion and remand.

3 For these reasons, LAUSD’s Motion to Dismiss is DENIED.

29a

The district court relied on Jacobson to hold that the Policy was rooted in a

legitimate government interest. Reilly, 2022 WL 5442479, at *5-6. But Jacobson

does not directly control based on Plaintiffs’ allegations. In Jacobson, the Supreme

Court balanced an individual’s liberty interest in declining an unwanted smallpox

vaccine against the State’s interest in preventing disease. 197 U.S. at 38. The

Court explained that the “principle of vaccination” is “to prevent the spread of

smallpox.” Id. at 31—32. Because of this, the Court concluded that the State’s

interest superseded Jacobson’s liberty interest, and the vaccine requirement was

constitutional. Id.

Plaintiffs argue that a “traditional vaccine” must provide immunity and prevent

transmission, meaning that it must “prevent the spread” of COVID-19. Plaintiffs

allege that the vaccine does not effectively prevent spread, but only mitigates

symptoms for the recipient. And Plaintiffs claim that something that only does the

latter, but not the former,

is like a medical treatment, not a “traditional” vaccine. This interpretation

distinguishes Jacobson, thus presenting a different government interest.

Putting that aside, the district court held that, even if it is true that the vaccine

does not “prevent the spread,” Jacobson still dictates that the vaccine mandate

challenged here is subject to, and survives, the rational basis test. The district court

reasoned that “Jacobson does not require that a vaccine have the specific purpose of

preventing disease.” Reilly, 2022 WL 5442479, at *5 (emphasis in original). It

acknowledged Plaintiffs’ allegations that the vaccine did not “prevent transmission

or contraction of COVID-19.” Id. at *6. But it declared that “these features of the

vaccine further the purpose of protecting LAUSD students and employees from

COVID-19,” and thus “the Policy survives rational basis review.” Id.

This misapplies Jacobson. Jacobson held that mandatory vaccinations were

rationally related to “preventing the spread” of smallpox. 197 U.S. at 30; see also

Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 23 (2020) (Gorsuch, J.,

concurring) (“Although Jacobson pre-dated the modern tiers of scrutiny, this Court

essentially applied rational basis review to Henning Jacobson’s challenge ...”).

Jacobson, however, did not involve a claim in which the compelled vaccine was

“designed to reduce symptoms in the infected vaccine recipient rather than to

prevent transmission and infection.” Reilly, 2022 WL 5442479, at *5. The district

court thus erred in holding that Jacobson extends beyond its public health

rationale—government’s power to mandate prophylactic measures aimed at

30a

preventing the recipient from spreading disease to others—to also govern “forced

medical treatment” for the recipient’s benefit. Id. at *5.

At this stage, we must accept Plaintiffs’ allegations that the vaccine does not

prevent the spread of COVID-19 as true. Twombly, 550 U.S. at 556. And, because

of this, Jacobson does not apply. LAUSD cannot get around this standard by

stating that Plaintiffs’ allegations are wrong. Nor can LAUSD do so by providing

facts that do not contradict Plaintiffs’ allegations. It is true that we “need not 0

accept as true allegations that contradict matters properly subject to judicial

notice.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). But

even if the materials offered by LAUSD are subject to judicial notice, they do not

support rejecting Plaintiffs’ allegations. LAUSD only provides a CDC publication

that says “COVID-19 vaccines are safe and effective.” But “safe and effective” for

what? LAUSD implies that it is for preventing transmission of COVID-19 but does

not adduce judicially noticeable facts that prove this.

We note the preliminary nature of our holding. We do not prejudge whether, on a

more developed factual record, Plaintiffs’ allegations will prove true. But “[w]hether

an action ‘can be dismissed on the pleadings depends on what the pleadings say.’”

Marshall Naify Revocable Tr. v. United States, 672 F.3d 620, 625 (9th Cir. 2012)

(quoting Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n.l (9th Cir. 1997)).

Because we thus must accept them as true, Plaintiffs have plausibly alleged that

the COVID-19 vaccine does not effectively “prevent the spread” of COVID-19. Thus,

Jacobson does not apply, and so we vacate the district court’s order of dismissal and

remand.

V

This case is not moot. And the district court wrongly applied Jacobson to the

substantive due process claim.

Thus, we vacate the district court’s order and remand.

VACATED AND REMANDED.

R. NELSON, J., concurring:

I write separately to address another issue not at issue in this appeal, but perhaps

relevant as this case progresses on remand. Our intervening case, Kohn v. State

Bar of California, 87 F.4th 1021 (9th Cir. 2023) (en banc), raises the question

31a

whether the district court’s holding below that the Los Angeles Unified School

District (LAUSD) is entitled to sovereign immunity should be revisited.

“[A] federal court generally may not hear a suit brought by any person against a

nonconsenting State.” Munoz v. Super. Ct. of LA. Cnty., 91 F.4th 977, 980 (9th Cir.

2024) (internal quotation marks omitted). “This prohibition applies when the state

or the arm of a state is a defendant.” Id. (cleaned up). We recently clarified when a

government agency is an “arm of the state.” See Kohn, 87 F.4th at 1026- 32. We

examined the current test—the Mitchell factors— against. Supreme Court precedent

and overruled it. Id. at 1027-30 (reassessing Mitchell v. L.A. Cmty. Coll. Diet., 861

F.2d 198, 201-02 (9th Cir. 1988)). We instead adopted a new, entity-based test. Id.

at 1030. Kohn’s reasoning may impact claims that can be brought against LAUSD.

The Supreme Court has never established a standard test for determining whether

an entity is an “arm of the state.” See id. at 1026-27. We developed the Mitchell

factors out of a “grab bag” of Supreme Court and Ninth Circuit precedent. Id. at

1027. One of the cases the Mitchell factors relied on was the Supreme Court’s

decision in Edelman v. Jordan, 415 U.S. 651 (1974). Id. Edelman suggested that if

the judgment would be paid by the State, the suit is barred. See id. at 1027 (citing

Edelman, 415 U.S. at 663 (“Thus the rule has evolved that a suit by private parties

seeking to impose a liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.”)). Since Edelman, however, the

Court has held that solvency and state dignity are equally important, and what

matters is how the state and defendant relate to one another. See id. at 1027-28;

see also id. (“But, since Edelman and Mitchell, the Supreme Court has clarified that

‘[t]he Eleventh Amendment does not exist solely in order to preven[t] federal-court

judgments that must be paid out of a [s]tate’s treasury.’” (quotations omitted) (itself

quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996)).

The Mitchell test was applied inconsistently, and thus was not predictable. The

factors were weighted differently, and while this balancing afforded judicial

discretion, “it allows lower courts in our Circuit to ‘twist’ the arms of the state

doctrine depending on the defendant.” Id. at 1029. For example, “[u]nder Mitchell,

we 0 placed the greatest weight on” who was financially responsible in assessing

sovereign immunity. Id. at 1027 (citing Durning v. Citibank, NA., 950 F.2d 1419,

1424 (9th Cir. 1991)). This made little sense. See id. at 1027-30.

The second Mitchell factor—“whether the entity performs central government

functions”—was also applied inconsistently. Id. at 1029. At times, we have

evaluated this at the entity-level, and other times at the activity-level. Id.

32a

But if the Mitchell test were entity-based, an entity either should be immune or

not—it should not depend on what the entity is doing. Id.

Recognizing this tension, Kohn overruled Mitchell. Id. at 1028 (“The Mitchell

factors are ... inconsistent with Supreme Court arm of the state doctrine.”). In its

place, we adopted an “entity-based” test. Id. at 1030. This three-factor test

evaluates “(1) the state’s intent as to the status, including the functions performed

by the entity; (2) the state’s control over the entity; and (3) the entity’s overall

effects on the state treasury.” Id. (citing P.R. Porte Auth. v. Fed. Mar. Comm’n, 531

F.3d 868, 873 (D.C. Cir. 2008) (cleaned up)). Under it, “an entity either is or is not

an arm of the [s]tate”—it is not context specific. Id. at 1031 (citing P.R. Porte Auth.,

531 F.3d at 873).

We have held that California school districts have sovereign immunity, relying on

Mitchell. See, e.g., Belanger v. Madera Unified Sch. Diet., 963 F.2d 248, 254 (9th

Cir. 1992); Sato v. Orange Cnty. Dep’t ofEduc., 861 F.3d 923, 934 (9th Cir. 2017).

That said, we have held that school districts in other states are not.4 The reasons

for this differing result are now suspect under Kohn. Given this, it must be

reassessed whether California school districts are an “arm of the state.”

We first held that California school districts were an “arm of the state” in Belanger.

We noted that some factors cut against this but reasoned that “Belanger [could not]

prevail on the first and most important factor because a

judgment against the school district would be satisfied out of state funds.”

Belanger, 963 F.2d at 251. We also stated that “under California law, the school

district is a state agency that performs central government functions.” Id. This

analysis thus hinged on the first and second, now defunct, Mitchell factors. See id.

Belanger? a analysis of the second factor also examined the activity that California

school districts performed—public schooling—and reasoned that because that was a

“central governmental function,” they were “arms of the state.” Id. The Belanger

court was unconcerned that California school districts “enjoy wide discretion and

considerable autonomy” under this second factor. See id. This analysis is thus

suspect under Kohn.

4 See, e.g., Holz v. Nenana City Pub. Sch. Diet., 347 F.3d 1176,1184 (9th Cir. 2003) (Alaska); Savage

v. Glendale Union High Sch., Diet. No. 205, 343 F.3d 1036, 1044 (9th Cir. 2003) (Arizona); Eason v.

Clark Cnty.

Sch. Diet., 303 F.3d 1137,1143 (9th Cir. 2002) (Nevada).

33a

We then doubled down on this holding in Sato. Between Belanger and Sato,

California enacted AB 97, which

“reformed education funding and governance in California.”

Sato, 861 F.3d at 929. As a result, public education in California became more

locally funded and educational achievement more locally controlled—thus reducing

the State’s involvement in both. See id. That said, we still held that because state

and local education funds were “still ‘hopelessly intertwined,’” the first, now

disfavored, Mitchell factor still favored immunity. Id. at 932. For the second

Mitchell factor, while we recognized that “AB 97 granted districts Q some measure

of autonomy and discretion in goal-setting,” “it did not delegate primary

responsibility for providing public education.” Id. at 933. This determination thus

looked at the activity—providing public education— rather than the entity. That

reasoning and this conclusion is now suspect under Kohn.

Our new entity-based test in Kohn seems to conflict with (and likely overrule) our

reasoning in Belanger and Sato.

Because of this, the district court’s holding that LAUSD is an “arm of the state” (as

well as our prior holdings in Belanger and Sato) may need to be revisited. Cf. Reilly,

2022 WL 5442479, at *3 (relying on Mitchell to determine that LAUSD has

Eleventh Amendment immunity).2

COLLINS, Circuit Judge, concurring:

I agree that this case is not moot and that Jacobson v. Massachusetts, 197 U.S. 11

(1905), is not controlling under the well-pleaded allegations of Plaintiffs’ complaint.

I therefore concur in the majority opinion. I write separately to emphasize a crucial

point the district court overlooked.

The district court in this case explicitly held that Jacobson governs Plaintiffs’

substantive due process claim even if one assumes the truthfulness of the

complaint’s allegations that the Covid vaccines are not very effective at preventing

infection and transmission and that their value is primarily in reducing disease

severity for those recipients of the vaccine who thereafter contract Covid. As the

majority explains, Jacobson did not involve a comparable claim and is not

controlling authority with respect to it.

34a

In my view, the district court further erred by failing to realize that these

allegations directly implicate a distinct and more recent line of Supreme Court

authority, in which the

2 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. Cf.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also

Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 425-26 (9th Cir. 2008) (“[A] ‘live

claim for [even] nominal damages will prevent dismissal for mootness.’” (quoting

Bernhardt v.

County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002))).

Court has stated that “[t]he principle that a competent person has a constitutionally

protected liberty interest in refusing unwanted medical treatment may be inferred

from [the Court’s] prior decisions.” Cruzan ex rel. Cruzan v. Director, Mo. Dep’t of

Health, 497 U.S. 261, 278-79 (1990) (citing, not only Jacobson, but a series of later

“cases supporting] the recognition of a general liberty interest in refusing medical

treatment”). In Washington v. Glucksberg, 521 U.S. 702 (1997), the Court explained

that Cruzan.’s posited “‘right of a competent individual to refuse medical treatment’”

was “entirely consistent with this Nation’s history and constitutional traditions,” in

light of “the common-law rule that forced medication was a battery, and the long

legal tradition protecting the decision to refuse unwanted medical treatment.” Id.

at 724-25 (citation omitted). Given these statements in Glucksberg, the right

described there satisfies the history-based standards that the Court applies for

recognizing “fundamental rights that are not mentioned anywhere in the

Constitution.” Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 237—38 (2022).

The Supreme Court’s caselaw thus clarifies that compulsory treatment for the

health benefit of the person treated—as opposed to compulsory treatment for the

health benefit of others— implicates the fundamental right to refuse medical

treatment.

Plaintiffs’ allegations here are sufficient to invoke that fundamental right.

Defendants note that the vaccination mandate was imposed merely as a “condition

of employment,” but that does not suffice to justify the district court’s application of

rational-basis scrutiny. See Lane v. Franks, 573 U.S. 228, 236 (2014) (“[The] Court

has cautioned time and again that public employers may not condition employment

on the relinquishment of constitutional rights.”).

With these additional observations, I concur in the majority opinion.

35a

HAWKINS, Circuit Judge, dissenting.

This case is over. We cannot grant the sole relief sought by the Plaintiffs, an

injunction against enforcement of the school district’s now rescinded COVID-19

vaccination policy (the “Policy’). Despite the absence of any ongoing policy, my

friends in the Majority would hold that this action remains justiciable under the

voluntary cessation exception to mootness. See FBI v. Fikre, 601 U.S. 234, 241

(2024). In doing so, they ignore the practical realities surrounding LAUSD’s

adoption and rescission of the Policy, which demonstrate that there is no reasonable

expectation LAUSD will reimpose the Policy in the future. Because there is no

longer any policy for our court to enjoin, I would, as our court has done consistently

in actions challenging rescinded early pandemic policies, hold that this action is

moot, vacate the district court’s decision, and remand with instructions to dismiss

the action without prejudice. See, e.g., Brach v. Newsom, 38 F.4th 6 (9th Cir. 2022)

(en banc).

I begin with a brief overview of the pertinent events to illustrate the context in

which LAUSD adopted and then rescinded the Policy. In early March 2020, the

World Health Organization declared a global pandemic in response to COVID-19,

leading to the issuance of local, state, and federal emergency declarations and

orders. “Governor Gavin Newsom declared a state of emergency within California,

and issued Executive Order N-33-20, requiring Californians to ‘heed the current

State public health directives’ including the requirement ‘to stay home or at their

place of residence.’” Id. at 9. Around March 16, 2020, LAUSD closed its facilities

for in-person operations and implemented a distance learning and remote work

program that lasted through most of the 2020-2021 school year.

In advance of the reopening of schools for in-person instruction, California

Educators for Medical Freedom—one of the Plaintiffs in this action—and several

other individuals filed a complaint on March 17, 2021, seeking to enjoin LAUSD

from implementing a policy that required employees, without exception, to be

vaccinated against COVID-19. Cal. Educators for Med. Freedom v. Los Angeles

Unified Sch. Diet., No. 21-cv-02388, 2021WL 1034618, Dkt. 1 (C.D. Cal. Mar. 17,

2021) (CEMF).5 The CEMF complaint alleged, on information and belief, that

LAUSD had adopted such a policy, id. | 1, and attached several documents in

5 We may take judicial notice of filings and decisions in related court actions. See

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).

36a

support, including a March 4, 2021 memorandum to employees. See id. Ex. F. The

memorandum informed LAUSD employees that they were eligible to receive

COVID-19 vaccinations and provided information about registering for vaccinations

through the District’s vaccination program or submitting documentation of their

vaccination if received through an outside program. Id. The memorandum did not

state explicitly that employees were required to receive vaccinations or that

employment consequences would follow if employees were not vaccinated.6 Id. The

day after the CEMF plaintiffs filed

their complaint, LAUSD sent an updated interoffice memorandum that clarified

“vaccinations are not mandatory at this time.” The CEMF plaintiffs acknowledged

in an amended complaint that LAUSD was giving staff the option to test or be

vaccinated.

LAUSD moved to dismiss the case on ripeness grounds because it had not yet

implemented a vaccination policy, and the district court granted the motion. The

district court found that the case did not raise any voluntary cessation concerns

because, “according to Plaintiffs’ allegations, Defendants never began the

objectionable conduct in the first place.” The district court dismissed the action

without prejudice on July 27, 2021.

The 2021—2022 LAUSD school year was set to begin just a few weeks later on

August 16, 2021.7 The 2021—2022 school year also marked the unrestricted

reopening of LAUSD schools for in-person instruction.8 On August 13,

2021—the first “pupil free day” of the school year9 and three

6 CEMF also supported its complaint with a letter from the LAUSD employees’

union. CEMF, No. 21-cv-02388, 2021WL 1034618, Dkt.

7

LAUSD,

Single-Track

Instructional

School

Calendar

https://achieve.lausd.net/cms/lib/CA01000043/Centricity/Domain/4/RE

V1.4.2022BoardAppvd_2021-2022InstructionalCal.pdf

[“LAUSD

Calendar”].

2021-2022,

2021-2022

8 The emergency legislation allowing the California public school system to move

online expired on June 30, 2021, and on July 12, 2021, the State of California lifted

“all restrictions on school reopening.” Brach, 38 F.4th at 11, 13.

9 See LAUSD 2021-2022 Calendar.

37a

1, Ex. G. The letter indicated that the District’s plans to implement a mandatory

vaccination policy were in progress; the information regarding those plans “may

very well change;” discussions with the District were “nowhere near done;” and no

deadlines had been set given a variety of unknown variables, including the

availability of vaccinations. Id.

days before students would be returning to the classrooms— LAUSD circulated a

memorandum to staff announcing the Policy and explaining that all non-exempt

employees must be vaccinated against COVID-19. The LAUSD Board of Education

(the “Board”) approved the policy at a subsequent meeting in November 2021.

Plaintiffs filed the underlying complaint and sought an injunction barring

enforcement of the Policy. LAUSD eventually moved for judgment on the pleadings.

The district court granted the motion and entered judgment in favor of the

Defendants. Plaintiffs then appealed.

We held oral argument on September 14, 2023, approximately four weeks after the

start of LAUSD’s 2023- 2024 school year.6 At oral argument, counsel for Plaintiffs

informed the court that, although the Policy remained in effect as of that date, there

were rumors LAUSD would be rescinding the Policy. Consistent with those rumors,

a detailed report proposing rescission of the Policy was submitted to the Board on

the same day as oral argument. The proposal identified the many changes that had

occurred since LAUSD adopted the Policy in the fall of 2021 and expressed the view

that vaccines were no longer needed to keep schools open for in-person learning. At

its next meeting, held on September 26, 2023, the Board heard comments from

interested parties and voted to rescind the Policy.

6 LAUSD, Instructional School Calendar 2023-2024,

https://www.lausd.org/site/default.aspx?PageType=3&ModuleInstanceI

D=67213&ViewID=C9E0416E-F0E7-4626-AA7BC14D59F72F85&RenderLoc=0&FlexDataID=112212&PageID=

17824&Comments=true.

The Majority characterizes LAUSD’s conduct as an intentional manipulation of

federal courts. But we generally afford the government a presumption of good faith,

Brach, 38 F.4th at 13, and when viewed in context, there are obvious, non-litigationrelated explanations for LAUSD’s actions surrounding the adoption and rescission

of the Policy. Far from the “about-face” described by the Majority, the CEMF

pleadings and attached documents reflect that LAUSD simply had not formalized or

implemented a vaccination policy at the time the plaintiffs filed their complaint in

that litigation. Although implementation of the Policy came on the heels of the

38a

CEMF lawsuit’s dismissal, it also coincided with the start of the new school year

and LAUSD’s full return to in-person learning after the unprecedented school

closures seventeen months earlier. Thus, I would not be so quick to deem the

timing of LAUSD’s development and adoption of the Policy as litigation

gamesmanship, and I would not rely on it to infer the motive behind LAUSD’s

rescission of the Policy. Instead, I believe there is sufficient evidence in the record

that LAUSD rescinded the Policy in response to developments regarding COVID-19

and “not [as] a temporary move to sidestep litigation.” Brach, 38 F.3d at 13.

Next, and more importantly, the record shows that LAUSD is not reasonably

expected to reenact the Policy. See Fikre, 601 U.S. at 241. The burden to show that

challenged conduct is not reasonably expected to recur is a “formidable” one indeed.

Id. And governmental defendants must bear that burden just as any other private

party would. Id. Here, LAUSD has carried that burden.

Again, context matters. LAUSD adopted the Policy in response to the COVID-19

pandemic and the return to full in-person instruction after the extended school

closures occasioned by the onset of the pandemic. Those are not “routine

occurrence [s] that we can assume [are] reasonably likely to reoccur.” McDonald v.

Lawson, 94 F.4th 864, 869 (9th Cir. 2024). It then rescinded the Policy after several

key developments in 2023, including the end of local, state, and federal emergency

COVID-19 orders; the World Health Organization’s determination that COVID-19

no longer constitutes a public health emergency of international concerns; and the

determination that COVID-19 had entered an endemic phase. These legal and

scientific developments and LAUSD’s reliance on them suggest that LAUSD’s

recission of the Policy is “entrenched” and not “easily abandoned.” Brach, 38 F.4th

at 13. LAUSD also has averred that, absent a very unlikely return to the onset of

the COVID-19 pandemic, it will not reinstate the Policy.

As we have said before, “circumstances change, and when circumstances change, it

is not reasonable to expect simple repetition of past actions.” Wallingford v. Bonta,

82 F.4th 797, 804 (9th Cir. 2023). The bottom line, here, is that the circumstances

have changed. And neither the speculative possibility of a future pandemic nor

LAUSD’s power to adopt another vaccination policy save this case.10 See Brach, 38

F.4th at 9.

10 I also disagree with the approach to avoiding mootness suggested in the

concurrence. Although we may consider subsequent events when evaluating

mootness, we typically do not allow plaintiffs to change the nature of the remedies

sought in their complaint when mootness concerns arise. Seven Words LLC v.

39a

Unsurprisingly, our court has found that other challenges to early COVID-19

policies became moot upon the rescission or expiration of those policies, and in doing

so, we rejected arguments that the voluntary cessation exception to mootness

applied, particularly in light of the unique circumstances that gave rise to the

policies in the first place. See, e.g., id. at 12-14; McDonald, 94 F.4th at 869;

Seaplane Adventures, LLC v. County of Marin, 71 F.4th 724, 732-33 (9th Cir. 2023);

Donovan v. Vance, 70 F.4th 1167, 1172 & n.5 (9th Cir. 2023).

In a recent trio of cases, the Supreme Court vacated as moot lower court judgments

concerning COVID-19 vaccination mandates following the rescission of those

mandates. Payne v. Biden, 144 S. Ct. 480 (2023); Biden v. Feds for Ded. Freedom,

144 S. Ct. 480, 480-81 (2023);

Kendall v. Doster, 144 S. Ct. 481 (2023). Relying on Payne, Feds for Medical

Freedom, and Doster, we determined that a challenge to the executive order

mandating COVID-19 vaccinations for federal contractors became moot upon

rescission of that executive order; we vacated our court’s earlier opinion, dismissed

the appeal as moot, and remanded for the district court to vacate portions of its

order regarding the moot claims. Mayes v. Biden, 89 F.4th 1186, 1188 (9th Cir.

2023). The case before us now warrants the same result.

“Sometimes, events in the world overtake those in the courtroom, and a complaining

party manages to secure outside of litigation all the relief he might have won in it.”

Fikre, 601 U.S. at 240. That is the case here. Because there is no longer any policy

for the court to enjoin or declare unlawful, I would hold that the case is moot, vacate

the

of a remedy not sought in the complaint as a means to reach the merits of an

otherwise moot case.

district court’s decision, and remand for the district court to dismiss the case as

moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). I dissent.

Network Solutions, 260 F.3d 1089, 1097—98 (9th Cir. 2001). If our court would not

allow the Plaintiffs to save this case with a “late-in-the-day” request for damages,

Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018), the court certainly

should refrain from sua sponte suggesting a novel legal theory in support

40a

Appendix D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2473

Edward Walton

Appellant

v.

Booz Allen Hamilton Holding Corporation, et al.

Appellees

Appeal from U.S. District Court for the Western District of Missouri Springfield (6:23-cv-03196-BCW)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel

is also denied.

February 19, 2025

Order Entered at the Direction of the Court:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Maureen W. Gornik

41a