Case updates this week:

The Supreme Court denied the plaintiff’s petition for certiorari review of the Second Circuit’s decision in We The Patriots USA, Inc., et al. v. Connecticut Office of Early Childhood Development, et al. In that case, We The Patriots USA, Inc., contended that the Connecticut Office of Early Childhood Development violated their First Amendment rights by removing the religious exemption from school vaccination requirements. Both the District Court and United States Circuit Court of Appeals for the Second Circuit rejected the argument and the Supreme Court declined to hear the case. For a detailed discussion of the Second Circuit decision, see our August 11, 2023 Spotlight.  

Tuesday, June 18: The United States Court of Appeals for the Ninth Circuit reversed the District Court for the Eastern District of Washington’s decision to grant the Defendants’ motion for judgment on the pleadings and remanded the case back to the District Court to give the Plaintiffs leave to amend in Bacon v. Woodward. Plaintiffs, a group of firefighters employed by the City of Spokane, Washington (the “City”), contended that, in applying State Governor Inslee’s Proclamation requiring state employees to be fully vaccinated against the COVID-19 virus, the City violated their Free Exercise rights under the First Amendment to the Constitution. Plaintiffs requested religious exemptions which the City denied.

The City determined that firefighters fell within the definition of “Health Care Provider” in the Governor’s Proclamation because the City required all firefighters to be certified Emergency Medical Technicians or paramedics. The City established a mechanism to evaluate exemption requests and to determine whether accommodating unvaccinated firefighters would impose undue hardship. After the City determined that it could not accommodate unvaccinated firefighters, the City held hearings to give them the opportunity to be heard. But the City was not persuaded to change its position.

When the plaintiff firefighters refused to vaccinate themselves, the City fired them and replaced them with firefighters from neighboring fire departments, some of which, did not categorically exclude firefighters from receiving religious accommodations to the vaccination mandate. The District Court found that the City’s application of the Proclamation was neutral and generally applicable in that it applied to a specific job sector that “came into regular contact with vulnerable segments of the public, particularly in emergency situations and whose employees work in close contact with their peers and other healthcare professionals in other facilities.” The District Court concluded that the “City’s vaccination requirement survives both strict scrutiny and rational basis” review. 

The Ninth Circuit, in its review of the case, first addressed whether the case had become moot upon the Governor’s recission of the vaccine mandate. The Ninth Circuit found that the Plaintiffs still had live claims. First, the Court found that they had “plausibly pled” a state claim for punitive damages based on the “callous disregard” for their Free Exercise rights, despite that the City had held hearings to hear and consider the firefighters’ position. 

The Court also found that the firefighter’s request for injunctive relief remained live. When the firefighters filed their lawsuit, they were still employed by the City. Their request for injunction relief was for an order that they were exempt from the vaccine mandate. But, since they were fired during the pendency of the lawsuit, the Court determined that their request for injunctive relief should be considered a request to restore the parties to the status quo ante (the position the parties were in before the events giving rise to the lawsuit occurred). A return to status quo ante would mean reinstatement for the firefighters, and a request for reinstatement constitutes prospective relief, which makes it a live, not moot, claim. 

Addressing the merits, the Ninth Circuit found that the firefighters had “plausibly pled” that the City’s implementation of Governor’s Proclamation was not “generally applicable.” The route by which the Ninth Circuit arrived at this determination was circuitous. By hiring firefighters from neighboring fire departments that granted religious exemptions, the City created the secular exemption of “being a member of a neighboring department.” The City then held requests for religious exemptions to a higher standard than the secular “being from a neighboring department” exemption. As the dissent noted, the Defendants did not claim that any replacement firefighters were unvaccinated, only that it was predictable that there would be, given that some neighboring fire departments did accommodate religious exemptions for firefighters. 

The dissent also disagreed with the majority that the District Court abused its discretion by declining to grant the Plaintiffs leave to amend their complaint. The dissent stated that the “good cause” standard in Rule 16(b) should apply because the Plaintiffs did not request leave to amend within the deadline set by the District Court’s scheduling order. Further, their late request for leave to amend was not accompanied by any explanation for missing the deadline or support for good cause why they should be granted leave.

Friday, June 21: The United States Court of Appeals for the Fifth Circuit described their decision in Braidwood Management v. Becerra as a “mixed bag.” At issue was the Affordable Care Act’s (“ACA”) requirement that preventative services be covered by private insurance without cost sharing. The ACA designated three agencies to determine the specific preventative care measures that should be included within the terms of the ACA. The statute defined four categories of preventive services that were required to be covered: (1) “evidence based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations for the United States Preventive Services Task Force (Task Force)” (2) “immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention (ACIP) with respect to the individual involved”; and (3) preventive services for women, children, adolescents, and infants recommended by Health Resources and Services Administration (HRSA).These three regulatory entities collaboratively issued recommendations and guidelines for the designated preventive care services. 

The Plaintiffs in this case, four individuals and two businesses, objected to being required to provide insurance coverage for preventative health care that they claimed made them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” They contended that the rulings and guidelines promulgated by these three regulatory entities were unconstitutional because their members were principal officers that had not been properly nominated by the President and approved by the Senate in Violation of Article II of the Constitution. The District Court agreed with the Plaintiffs and issued a universal injunction and vacatur of all agency actions taken to enforce the preventive care coverage mandate.  

The Fifth Circuit noted that the “primary point of contention between the parties. . . [was] the constitutionality of the Task Force.” The Fifth Circuit determined that the Task Force members were principal officers under Article II, making their actions unconstitutional. However, the Fifth Circuit held that the injunctive relief granted by the District Court only applied to the actions taken by the Task Force, and reversed the injunction against ACIP and HRSA, because their members were inferior officers and not subject to Presidential appointment and approval by the Senate.  

The Fifth Circuit limited its order enjoining the Defendants from enforcing preventive-care mandates set by the Task Force to the Plaintiffs. However, as a practical matter, because the Fifth Circuit determined that the Task Force’s actions were unconstitutional, it is likely that health plans operating inside the jurisdiction of the Fifth Circuit will not provide the mandated preventive care. The Task Force coverage requirements for most Americans remain in place, at least for the time being.  

The Newsletter will take a break for next week. We will be back in your inbox on 7/11.