Split 9th Circ. Revives LA Schools Vaccine Policy Row

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Diaz Reus Of Counsel Brant C. Hadaway prosecuted this case for the Plaintiffs in the CD Calif and assisted with the appeal. It is a huge victory, with the majority declining to dismiss based on the voluntary cessation doctrine and holding that the district court had misapplied Jacobson v. Massachusetts (a 1905 Supreme Court decision that courts genuflected to during the pandemic).

Law360(June 7, 2024, 10:29 PM EDT)
— A split Ninth Circuit panel on Friday reversed a California federal court’s dismissal of a proposed class action challenging a recently rescinded Los Angeles Unified School District policy requiring employees to get the COVID-19 vaccine to keep their jobs, ruling that the district still has the potential to reinstate it.

The panel majority said the district has a pattern of withdrawing and reinstating its strict vaccination policy, most recently pulling the plug on it just 12 days after the Ninth Circuit held oral arguments in the workers’ case. LAUSD hasn’t shown that it didn’t recently abandon the policy because of litigation, U.S. Circuit Judge Ryan D. Nelson wrote on behalf of the majority.

«Twice LAUSD has withdrawn its policy only after facing some litigation risk,» Judge Nelson wrote. «LAUSD immediately rescinded its prior policy after some plaintiffs first sued, and LAUSD then asked the district court to dismiss for mootness or ripeness.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.»

Then, immediately following oral arguments, the district rescinded the policy again, according to the opinion.

Judge Nelson, who was joined by U.S. District Judge Daniel P. Collins, said there was a «strong inference» that LAUSD waited to see how oral arguments would shake out before deciding whether or not to keep the vaccination policy in place.

«So this case is not moot,» he said.