Case updates this week:

Friday February 23rd: The Ninth Circuit Court of Appeals upheld the dismissal of a challenge to Oregon’s COVID-19 vaccine mandates for public school teachers and healthcare workers. The plaintiffs in Johnson v. Kotek made several claims that Oregon’s mandate violated their individual rights under the U.S. Constitution, which entitled them to damages under 42 U.S.C. § 1983. Their first § 1983 claim was that the Emergency Use Authorization portion of the federal Food, Drug, and Cosmetics Act (“FDCA”) pre-empted the state’s mandate. The Ninth Circuit affirmed the lower court’s dismissal on the grounds that the Supremacy Clause does not “of its own force” create enforceable individual rights. The FDCA explicitly states that all enforcement “shall be by and in the name of the United States,” which precluded plaintiffs from using a § 1983 claim to enforce provisions of the FDCA.

Plaintiffs also argued that the mandate violated both the Privileges and Immunities and the Due Process Clauses of the Fourteenth Amendment by violating their fundamental right to refuse experimental medical treatments. Plaintiffs conceded that their claims were precluded by the long-standing and previously undisturbed narrow reading of the privileges and immunities of citizenship articulated in 1872 in The Slaughter-House Cases. Thus, the Ninth Circuit found that the claim failed as a matter of law. The Ninth Circuit declined to decide whether the plaintiffs’ due process claims based on the same fundamental right were viable because the state officials sued were entitled to qualified immunity and failed on that ground.

However, the lower court held, and the Ninth Circuit affirmed, that the plaintiffs only sought injunctive and declaratory relief, not reinstatement to their past positions. This rendered the claims moot because the court could no longer provide the remedies sought, since the challenged mandates were rescinded in 2022. The Ninth Circuit did amend the lower court’s order in one respect: it dismissed the mooted claims without prejudice, rather than with prejudice.

Tuesday February 27th: The Eighth Circuit Court of Appeals reversed a lower court’s grant of summary judgment in favor of the plaintiffs in The Arc of Iowa v. Reynolds. On appeal of the summary judgment decision, the Eighth Circuit considered the standing issue de novo, and dismissed the case for plaintiffs’ lack of standing. The plaintiffs, parents of disabled children, sued Iowa’s governor and the state’s Director of the Department of Education to enjoin enforcement of a ban on mask mandates in public schools “unless otherwise required by law.” The lower court interpreted “unless otherwise required by law” to include requests for masking as accommodations under the Americans with Disabilities Act and section 504 of the Rehabilitation Act. On appeal, the Eighth Circuit bypassed this question, and dismissed the case on the grounds that the plaintiffs had not shown an injury in fact. The court cited the First, Fifth, and Sixth Circuits, for the proposition that general risks of COVID-19 are too speculative to meet the injury in fact requirement, ignoring that the disabled plaintiffs experienced a heightened, not general risk from COVID-19 infection. Furthermore, the plaintiffs had not shown traceability because school districts are the entities that would actually enforce the Iowa statute at issue, not the governor and Director of the Department of Education.