Public Health Authority Case Updates for January, February, and March 2024

January, 2024

Thursday January 4th: Do No Harm, a conservative nonprofit whose stated mission is to “protect healthcare from a radical, divisive, and discriminatory ideology,” filed a suit in the federal District Court for the Western District of Louisiana challenging the state’s recently implemented diversity requirement for the Louisiana Medical Licensing Board. Board members are appointed by the Governor and confirmed by the state Senate. The 2018 law challenged in this suit sets forth the process for creating the list of candidates from which the Governor must choose. The law designates seven hospitals, medical schools, and physician organizations who each provide the Governor with a list of candidates. The law also prescribes the number of Board members that must come from each of those lists. Thus, for example, two members of the Board must come from a list submitted by the Louisiana Medical Association. The law also specifies with respect to four of the eight required lists that “[a]t least every other member appointed from a list provided for in this Paragraph shall be a minority appointee.”

The suit alleges that this violates the Equal Protection Clause of the Fourteenth Amendment because government classifications based on race require a narrowly tailored remedy to address a compelling governmental interest. The group argues that there is no compelling governmental interest served by the statute because they claim there are no “specific instances of racial discrimination” that it serves to remedy.

Friday January 5th: The federal district court for the Northern District of Texas granted a Freedom of Information Act (FOIA) request for millions of free-text survey responses collected through the COVID-19 V-safe program. In Freedom Coalition of Doctors for Choice v. CDC, the plaintiff, Freedom Coalition of Doctors for Choice, sought the release of data collected through the CDC’s COVID vaccine safety monitoring tool, V-safe, after the agency initially only released aggregated, check-the-box data. The court held that fulfilling the request will not impose an unreasonable burden on the agency, despite affidavits from CDC employees stating otherwise because automation and other technical tools will assist in the process. Furthermore, the court held that the plaintiffs were entitled to both expedited review, as well as a fee waiver.

Friday January 5th: The Rhode Island Department of Health settled a lawsuit brought by parents challenging a mask mandate the Department of Health imposed when schools reopened in 2021. The settlement agreement stipulates that the Department of Health would initiate a Proposed Permanent Regulation that requires the Department to publish a public statement on its website explaining its rationale for imposing any future statewide masking requirement. As consideration for dismissing the lawsuit, the Plaintiffs and their representatives will be allotted extra time to speak at the public comment session for the proposed regulation beyond that allotted for the general public.

Wednesday January 10th: The Michigan Supreme Court heard arguments over whether two cases involving business closures that occurred during the early stages of the COVID-19 pandemic should be allowed to proceed. The plaintiffs, owners of restaurants, bars, and gyms, argued on two fronts: that there is a genuine issue of fact as to whether the closures were kept in place for longer than necessary, and that regardless of the reasonableness of the closures, that they constituted a taking for which the government is absolutely obligated to compensate. Attorneys for Michigan argued that almost every other court in the country has decided that business closures in the face of a pandemic do not constitute taking, because the orders were properly within the state’s police power and necessary to combat a “grave threat to public health.”

Tuesday January 23rd: The Fifth Circuit Court of Appeals dismissed a challenge to the FDA’s emergency-use authorization for COVID-19 vaccination in children in Children’s Health Defense v. FDA. The suit was brought by Children’s Health Defense, the anti-vaccine group founded by Robert F. Kennedy, Jr. that has previously been covered in this newsletter. The plaintiffs argued they had standing because their children might be vaccinated without their consent by a third party. However, the court rejected this argument, stating that it was too speculative to base standing on this hypothetical third party when they did not allege facts that would establish that their children would or could receive a COVID-19 vaccine without their consent. The plaintiffs also argued that they were injured by general societal pressure to get vaccinated, but the court held that this is both not a harm in and of itself, and also not sufficiently tied to the FDA’s issuance of an emergency use authorization.

Monday January 29th: The Seventh Circuit Court of Appeals upheld the dismissal of a challenge to an Illinois COVID-19 vaccine mandate for schoolteachers in Svendsen v. Pritzker. The plaintiffs argued that the COVID-19 vaccine requirement for employees of primary and secondary schools violated their First Amendment rights, Title VII, as well as various claims based on Illinois state laws. However, the Seventh Circuit affirmed the district court’s decision to dismiss the damages claims Plaintiffs brought in federal court because they were precluded by a final decision on the merits in state court. Plaintiffs had attempted to split their equitable claims in state proceedings from the damages claims in federal court, a move that was prohibited under Illinois law. The Seventh Circuit held that because the state court had already rendered a final decision, the federal damage claims were precluded under Illinois’s application of res judicata.

 Monday January 29th: The federal district court for the Northern District of California certified the class of plaintiffs that allege Santa Clara County’s implementation of a COVID-19 vaccine mandate for employees violated their religious freedoms. In UnifySCC v. Cody the plaintiffs are challenging the county’s policy of disallowing exempted individuals from remaining in jobs the county categorized as high-risk, regardless of whether the exemption was medical or religious, and despite the county’s accommodation framework for transferring them to lower risk jobs. The plaintiffs argue that their Free Exercise rights under the First Amendment as well as their Equal Protection rights under the Fourteenth Amendment were violated because the reassignment process prioritized those with medical exemptions. The court found that the proposed class met the certification requirements on the question of the county’s liability, but not on the question of individual damages. Of note, the class counsel was certified as Advocates for Faith & Freedom, an anti-vaccine religious liberty advocacy group previously covered in this newsletter.

February 2024

Monday February 5th: The Third Circuit Court of Appeals ruled on a lower court’s order dismissing two First Amendment cases related to a New Jersey COVID-era mask mandate in Falcone v. Dickstein. The case consolidated two separate challenges, both involving parents who faced legal repercussions after refusing to wear masks while attending local school board meetings. Each parent claimed they refused to wear a mask in protest of their school district’s mask mandate. Plaintiff, Murray-Nolan, was arrested at a school board meeting after being warned multiple times of the consequences of not wearing a mask. Plaintiff, Falcone, was one of many maskless people in attendance at his school board meeting, but the only one was issued a summons. The court reversed the lower court’s finding that Falcone did not have standing. The Circuit court explained that the issue of standing should not be influenced by the merits, or lack thereof, of the underlying claims. The court remanded, and directed the district court to proceed on the defendants’ motion to dismiss Falcone’s complaint. The court made clear that refusing to wear a mask when a valid health order is in place is not a protected exercise of First Amendment rights.

Tuesday February 6th: The Sixth Circuit Court of Appeals upheld the dismissal of a challenge to an Ohio school district’s mask mandate during the COVID-19 pandemic. In Maras v. Mayfield City School District Board of Education the plaintiff filed suit pro se on behalf of her (at the time) minor daughter, alleging that the school district’s adoption of a mask mandate violated her due process rights under both federal and state law. However, the court dismissed the case as moot for two reasons: the mask mandate has been lifted, and the plaintiff’s daughter has since graduated high school. Therefore, the controversy at issue is no longer ongoing, and the lower court was correct to dismiss the case.

Thursday February 8th: The Minnesota Supreme Court heard oral arguments in a challenge to the governor’s authority to declare a peacetime state of emergency in response to the COVID-19 pandemic. In July 2023, the Minnesota Court of Appeals held that a pandemic fell within the definition of natural disaster in the state’s Emergency Management Act of 1996 providing the governor with the authority to issue mask mandates, social distancing requirements, and business closures. The Minnesota Supreme Court agreed to hear an appeal of that decision in October 2023. A video of the oral arguments can be found here. The case, Snell v. Walz, was previously covered in this newsletter.

Friday February 9th: The Fourth Circuit Court of Appeals upheld the dismissal of Antunes v. Becerra in a short opinion endorsing the district court’s ruling in its entirety. The plaintiff nurse was dismissed from her job with the University of Virginia Health Systems (UVA) after she refused to submit proof of COVID-19 vaccination pursuant to her employer’s mandate. She claimed that, in so doing, UVA violated her Equal Protection and Due Process Rights under the Fourteenth Amendment. The plaintiff also sued several federal defendants, specifically the Department of Health and Human Services (DHHS), the Food and Drug Administration, and the heads of each agency, for violating the FDCA and the Equal Protection Clause by failing to prevent UVA from firing her. On appeal, the plaintiff continued her suit against UVA Health and the Secretary of DHHS, Xavier Becerra, only. However, the Circuit Court held that the district court was correct to dismiss all claims. They confirmed the lower court’s reasoning that being unvaccinated is not a protected class subject to strict scrutiny, and under rational basis review, UVA had a legitimate interest in curtailing the spread of COVID-19 through the mandate. Additionally, the lower court held that the claims against the federal defendants should be dismissed for lack of standing, because there was no connection between DHHS approving the COVID-19 vaccine and UVA requiring the vaccine, and because sovereign immunity protected Becerra from suit.

Wednesday February 14th: The First District Court of Appeal of Florida reversed an order of the Public Employees Relations Commission (PERC) which dismissed a challenge by a fire fighters’ union to an Orange County, Florida COVID-19 vaccine mandate. In Orange County Fire Fighters Association v. Orange County Board of County Commissioners, the union argued that by instituting the vaccine mandate without first negotiating with them, Orange County had violated state fair labor laws. After the suit was filed, but while the PERC proceedings were ongoing, the Florida state legislature passed a two-year ban on state governmental entities requiring COVID-19 vaccines for employees. PERC then dismissed the suit, because the Florida law rendered it moot. However, the Court of Appeal reversed, holding that any unfair labor practices that preceded the statutory ban on COVID-19 vaccine mandates were not moot. Further, the ban had expired in June 2023, enabling the County to reinstitute the mandate.

Wednesday February 14th: The federal district court for the Northern District of Texas refused to dismiss as moot a case surrounding the US Navy’s COVID-19 vaccine mandate in US Navy Seals 1-26 v. Austin. The court held that the injunctive relief initially sought by the plaintiffs to void the COVID-19 vaccine mandate should be dismissed as moot. However, despite acknowledging the almost universal agreement among courts to the contrary, the court ruled that the plaintiffs’ claims that the Navy’s religious accommodations policy as a whole violated their religious liberty were not moot. The plaintiffs had alleged that the Navy’s procedure for considering requests for religious exemptions was faulty even prior to the adoption of the COVID-19 mandate. Because this allegedly faulty procedure was present before the COVID-19 mandate and is still in effect, the court held that the plaintiffs presented enough evidence of both past harm and potential future harm to defeat the motion to dismiss.

Thursday February 15th: The Third Circuit Court of Appeals upheld a lower court’s dismissal of a challenge to Rutgers University’s COVID-19 vaccination policy for on-campus students. The plaintiffs included both Rutgers students and noted anti-vaccine group Children’s Health Defense. They argued in Children’s Health Defense v. Rutgers that the university’s policy was preempted by the federal Emergency Use Authorization (EUA), and that it violated their Due Process and Equal Protection rights under the Fourteenth Amendment. In dismissing the preemption claim, the court held that the EUA statute only protects individuals from being required to receive EUA products, not from the consequences of refusing to receive them. In upholding the dismissal of the Due Process claim, the court, relying on Jacobson stated that there is no fundamental right to refuse vaccination. The court thus applied rational basis review and held that Rutgers’s policy was rationally linked to limiting the spread of COVID-19. Finally, the court found that the plaintiffs had not sufficiently alleged facts to support their Equal Protection claims that they received unequal treatment vis-à-vis faculty and staff on the one hand, and students with “natural immunity” on the other. In any event, because students are more likely to live in communal settings than faculty and staff, and because the CDC had determined vaccinated and “naturally immune” individuals presented different infection risks, the plaintiffs were not similarly situated to either of the classes they claimed received preferential treatment.

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.

March, 2024

Monday March 4th: The Supreme Judicial Court of Massachusetts held that an employee’s refusal to comply with an employer’s COVID-19 vaccine mandate is not, by itself, the kind of intentional misconduct that would preclude an employee from receiving unemployment benefits. In Fallon Community Health Plan v. Acting Director of Department of Unemployment Assistance plaintiff, Fallon Community Health Plan (Fallon), appealed the decision of a district court that affirmed the decision of the Department of Unemployment Assistance granting unemployment benefits to Shanika Jefferson, Fallon’s former employee, whom Fallon had employed as a home health aide. Fallon had fired Jefferson after denying her request for a religious exemption from COVID-19 vaccination. On appeal, Fallon argued that refusing to receive a vaccine was “deliberate misconduct” and showed “wilful disregard” for her employer’s interests. The court agreed with both the Department of Unemployment review board and the district court that Jefferson’s efforts to negotiate reasonable accommodations undercut Fallon’s arguments that her misconduct was deliberate. Even if Jefferson’s misconduct had been deliberate, Fallon still had to demonstrate a willful attempt to undermine her employer’s interests. According to the court, Jefferson’s refusal to receive a vaccination was based on her sincere religious beliefs rather than an intent to harm her employer. The court pointed out that under Massachusetts statute governing unemployment, the critical question was whether the reason for the employee’s termination was such that they should be denied benefits, not simply whether the individual was fired for good cause.

Tuesday March 5th: The Court of Appeals of North Carolina upheld the dismissal of Happel v. Guilford County Board of Education, a suit brought by Emily Happel, the mother of a minor who received a COVID-19 vaccine without the consent or prior knowledge of his parents. Happel alleged both state and federal constitutional violations after her son received a COVID-19 vaccine when he had expected only to be tested for the virus. However, the lower court held, and the Court of Appeals agreed, that the sweeping immunity for covered persons under the Public Readiness and Emergency Preparedness Act (PREP Act) shielded defendants from liability. Further, the PREP Act preempted North Carolina’s law requiring parental consent for an emergency use authorized vaccine to be administered to a minor, as well as North Carolina’s constitutional parental rights, asserted by Happel, and the right to individual liberty, asserted by Happel on behalf of her minor child.

Monday March 11th: The Superior Court of Pennsylvania, an intermediate appellate court, upheld a lower court’s decision in favor of a father seeking the COVID-19 vaccine for his child in a custody case. The two parents in Asplundh v. Pendergrass have shared legal custody of their minor child since 2017, with a vaccination schedule agreed upon at the time of divorce. However, the father, Pendergrass, sought to amend the vaccination schedule to add COVID-19 in 2022, filing a petition to modify custody after he and the child’s mother, Asplundh, could not come to an agreement. Asplundh argued that it was in the child’s best interest to not be vaccinated against COVID-19 because of adverse reaction concerns, presenting evidence from an expert witness stating that the risk of harm was greater from the vaccine itself than from contracting COVID-19. However, the lower court disagreed with the conclusions of Asplundh’s expert, instead placing more weight on the Center for Disease Control’s recommendation that healthy children should receive the vaccine. The appellate court upheld the lower court’s decision, not finding an abuse of discretion that warranted overturning the grant, and in fact agreeing with the holding that the child’s best interest was served by receiving the vaccine.

Monday March 11th: The federal district court for the Western District of New York dismissed a challenge to New York’s vaccination requirements for children in school, specifically the recent elimination of religious exemptions. The plaintiffs in Miller v. McDonald, three Amish individuals and the private schools they run, were previously found to have violated New York’s statute requiring schools to ensure all enrollees comply with vaccination requirements. After the New York State Department of Health fined the three schools, the plaintiffs sued to enjoin the statute at issue, arguing that their First Amendment Free Exercise Rights were violated because they were required to enforce vaccine mandates despite having sincere religious objections. However, the court held that New York’s vaccine mandate scheme, including the phasing out of religious exemptions, was sufficiently similar to the one upheld in the Second Circuit’s We The Patriots USA Inc. v. Connecticut Office of Childhood Development decision as to require them to dismiss the claims.

Tuesday March 12th: The federal district court for the Middle District of Florida upheld the dismissal of another challenge to the federal government’s COVID-19 vaccine mandates in Couture v. Austin. One of many such claims arising from the now-rescinded COVID-19 vaccine mandates instituted in 2021, the plaintiffs, federal employees and contractors, alleged violations of the Administrative Procedure Act. However, the court dismissed the case as moot because the federal COVID-19 vaccine mandates were rescinded in 2023, and there is no evidence that the federal government will reinstitute a mandate. Because the orders at issue are no longer in place, the court can no longer provide the remedy sought, and duly dismissed for lack of subject matter jurisdiction.

Wednesday March 13th: The federal district court for the Southern District of New York granted summary judgment against an employee of the New York State Workers’ Compensation Board (WCB) who claimed he was denied a promotion because of his protected speech against COVID-19 mask mandates. In Cestaro v. Rodriguez, the plaintiff, Cestaro, is a Compensation Claims Referee whose promotion to Senior Compensation Claims Referee/Administrative Law Judge was rescinded after Cestaro was recorded on a New Jersey Transit train verbally harassing a conductor who asked him to pull his mask over his mouth and nose, in compliance with the transit masking requirements at the time. An attorney who frequently argued before Cestaro forwarded the video to defendants, various management level employees of the WCB, after it was posted on TikTok. The defendants revoked the promotion, finding Cestaro’s actions rude, aggressive, and unprofessional. Cestaro argued that the defendants retaliated against the exercise of his First Amendment right to Free Speech by revoking his promotion. The court rejected this argument, holding that the defendants had adequately proved that they fired Cestaro for his dismissive and “unprofessional” actions towards the transit employee. The court emphasized that “an employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements.” The remaining claims were dismissed based on Eleventh Amendment sovereign immunity because the involved officials either were not personally involved in the matter or were no longer employed at the WCB.

Monday March 18th: The federal district court for the Eastern District of Washington dismissed a suit against Washington’s governor regarding COVID-19 vaccine mandates he instituted for healthcare workers in Roberts v. Inslee. The plaintiffs, former healthcare workers at Shriners Hospital for Children, initially brought suit against both their employer as well as Washington Governor Jay Inslee for losing their jobs after refusing to receive the COVID-19 vaccine. While defendant Shriners was dismissed as a defendant in a prior ruling, the plaintiffs continued their suit against Governor Inslee in his official and individual capacity. The plaintiffs alleged that the governor violated their individual rights, locating these rights in numerous federal and state laws, including the Spending Clause, the Public Readiness and Emergency Preparedness (PREP) Act, as well as both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. However, the court held that Inslee was immune to the claims against him in his official capacity because the Eleventh Amendment’s concept of sovereign immunity automatically eliminates claims against States in federal court, unless that immunity is waived by the State. The court also held that the claims against Inslee in his individual capacity must be dismissed because the COVID-19 vaccine mandate for healthcare workers did not violate any clearly established constitutional rights.

Monday March 18th: The Supreme Court heard oral arguments in Murthy v. Missouri, a case alleging that Biden administration officials overreached in encouraging social media companies to remove certain COVID-19 vaccine misinformation from their platforms. The case comes to the Court after the Fifth Circuit upheld a preliminary injunction prohibiting such contact in the future based on First Amendment violations. The majority of Justices appeared to doubt the plaintiffs’ argument that almost all government contact with social media or traditional media companies would count as coercion given the government’s stature. A final ruling is expected by this summer. In the interim, a stay on the injunction that was issued in October remains in place.

Friday March 22nd: The federal district court for the Western District of Washington dismissed all federal law claims in White v. University of Washington. The plaintiff, White, a sonographer with a University of Washington clinic, was fired after the University denied her request for a religious exemption to its COVID-19 vaccine mandate. The plaintiff argued that the mandate forced her to either violate her sincerely held religious beliefs by receiving the COVID-19 vaccine or lose her job in violation of the First Amendment’s Free Exercise Clause. Plaintiff also alleged that the defendants violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses, Title VII, as well as various state law claims. The court acknowledged that the defendant, state agencies, had waived their qualified immunity by removing the case to federal court, but were nevertheless not subject to liability because states and state agencies acting in their official capacities are not persons under 42 U.S.C. § 1983. In addition, state officials could not be held liable in their individual capacities because the plaintiff had not shown any violation of a constitutionally protected right. The Title VII claim was dismissed because the defendants had adequately shown undue hardship caused by allowing the plaintiff a religious exemption because of the risk of COVID-19 spread with the plaintiff in a patient-facing role. With no remaining federal claims, the court remanded plaintiff’s state law claims to a Washington state court.

Monday March 25th: The federal district court for the District of Minnesota granted summary judgment to all defendants in McNeally v. HomeTown Bank. The plaintiff, McNeally, alleged HomeTown Bank terminated her employment in violation of her First Amendment right to Free Speech because of her opinions and speech against mask mandates during the COVID-19 pandemic. McNeally sued not only the bank but also the public school in which the HomeTown branch she worked in was located, along with various school administrators. However, the court held that only her direct employer, HomeTown, was responsible for her termination. As a private actor, HomeTown could not be liable for § 1983 constitutional violations.

Monday March 25th: In Royce v. Bonta the federal district court for the Southern District of California dismissed a challenge to California’s vaccine mandate for children enrolled in public or private schools. The plaintiffs, four mothers of school-aged children, alleged that the state violated their First Amendment Free Exercise rights because they were forced to decide between vaccinating their children, opposed by their religious beliefs, or deprive them of the benefits of a public education. The plaintiffs argued that the law was not generally applicable because secular, but not religious, exceptions are allowed. However, the court rejected this argument, holding that exemptions for medical reasons are not the kind of individualized exemptions that are suspect under Fulton v. Philadelphia. Rather, they were instead required when ordered by a doctor.

Friday March 29th: The Tenth Circuit Court of Appeals upheld the dismissal of Grace Bible Fellowship v. Polis, a challenge to Colorado’s COVID-19 restrictions limiting religious gatherings. Plaintiffs, Grace Bible Fellowship and its pastor, first brought suit in 2020, alleging that Colorado’s COVID-19 restrictions violated their Free Exercise rights under the First Amendment, but most claims were ultimately dismissed as moot in 2021 because the challenged measures were no longer in place. However, plaintiffs continued to challenge the Colorado Disaster Emergency Act (CDEA) on Free Exercise grounds. Their amended complaint added claims that CDEA and other Colorado public health laws violate the First Amendment’s Free Speech Clause, as well as the Fourteenth Amendment’s Equal Protection Clause.

The lower court held, and the Tenth Circuit affirmed, that all claims seeking prospective relief should be dismissed because the restrictions were no longer in place and could not cause injury to the plaintiffs sufficient for standing. The Tenth Circuit also dismissed the Free Exercise challenges to CDEA. The facial challenge failed under rational review because the CDEA is neutral and generally applicable. The as-applied challenge was moot because the application of the COVID-19 restrictions was no longer in place, and thus could not be causing current harm. Plaintiffs’ claims that they might be harmed in the future were purely speculative.

Friday March 29th: The federal district court for the Western District of Washington partially dismissed a challenge to a Washington school’s COVID-19 vaccine and mask mandates for employees in Rosser v. Ferndale School District No. 502. The defendant, Ferndale School District, fired plaintiff, Rosser, after he repeatedly refused to comply with the school’s mask mandate. Rosser alleged both that Ferndale fired him because of his religious objections to COVID-19 related masking, and that Ferndale retaliated against him by writing a negative work evaluation after he was terminated, violating Title VII and the Fourteenth Amendment’s Equal Protection Clause. However, the court rejected the majority of the claims, holding that Rosser had not raised religious objections to his employer prior to his firing for refusing to comply with the mask mandate. However, because the defendants did not “squarely address” the retaliation claim in their motion to dismiss, the court allowed the plaintiff the opportunity to amend his complaint, if he could do so without violating the ethical requirements of Rule 11, to include factual allegations that would remedy the legal deficiencies in his retaliation claim.

Friday March 29th: The federal district court for the District of Minnesota dismissed a doctor-turned-politician’s case against Minnesota’s Medical Board in Jensen v. Minnesota Board of Medical Practice. Plaintiff, Dr. Scott Jensen, made comments while running for Minnesota Governor in 2022 on COVID-19, medical treatment for the virus, and public health measures that were subsequently anonymously reported to the Minnesota Board of Medical Practice. Minnesota law requires the Board to both accept anonymous complaints against licensed physicians, as well as “receive and resolve” those complaints. Despite no further action being taken on any of the complaints beyond initial information gathering, Jensen alleged that the Board’s investigations were politically motivated reactions to his speech, violating the First Amendment. However, the court noted that there was no indication that Jensen was prevented from speaking. In fact, he continued to make public comments on the COVID-19 pandemic after being investigated. Due to Jensen’s failure to allege an injury in fact, the court found he lacked standing to sue.

Friday March 29th: The Tenth Circuit Court of Appeals upheld the dismissal of Grace Bible Fellowship v. Polis, a challenge to Colorado’s COVID-19 restrictions limiting religious gatherings. Plaintiffs, Grace Bible Fellowship and its pastor, first brought suit in 2020, alleging that Colorado’s COVID-19 restrictions violated their Free Exercise rights under the First Amendment, but most claims were ultimately dismissed as moot in 2021 because the challenged measures were no longer in place. However, plaintiffs continued to challenge the Colorado Disaster Emergency Act (CDEA) on Free Exercise grounds. Their amended complaint added claims that CDEA and other Colorado public health laws violate the First Amendment’s Free Speech Clause, as well as the Fourteenth Amendment’s Equal Protection Clause.

The lower court held, and the Tenth Circuit affirmed, that all claims seeking prospective relief should be dismissed because the restrictions were no longer in place and could not cause injury to the plaintiffs sufficient for standing. The Tenth Circuit also dismissed the Free Exercise challenges to CDEA. The facial challenge failed under rational review because the CDEA is neutral and generally applicable. The as-applied challenge was moot because the application of the COVID-19 restrictions was no longer in place, and thus could not be causing current harm. Plaintiffs’ claims that they might be harmed in the future were purely speculative.

Friday March 29th: The federal district court for the Western District of Washington partially dismissed a challenge to a Washington school’s COVID-19 vaccine and mask mandates for employees in Rosser v. Ferndale School District No. 502. The defendant, Ferndale School District, fired plaintiff, Rosser, after he repeatedly refused to comply with the school’s mask mandate. Rosser alleged both that Ferndale fired him because of his religious objections to COVID-19 related masking, and that Ferndale retaliated against him by writing a negative work evaluation after he was terminated, violating Title VII and the Fourteenth Amendment’s Equal Protection Clause. However, the court rejected the majority of the claims, holding that Rosser had not raised religious objections to his employer prior to his firing for refusing to comply with the mask mandate. However, because the defendants did not “squarely address” the retaliation claim in their motion to dismiss, the court allowed the plaintiff the opportunity to amend his complaint, if he could do so without violating the ethical requirements of Rule 11, to include factual allegations that would remedy the legal deficiencies in his retaliation claim.

 Friday March 29th: The federal district court for the District of Minnesota dismissed a doctor-turned-politician’s case against Minnesota’s Medical Board in Jensen v. Minnesota Board of Medical Practice. Plaintiff, Dr. Scott Jensen, made comments while running for Minnesota Governor in 2022 on COVID-19, medical treatment for the virus, and public health measures that were subsequently anonymously reported to the Minnesota Board of Medical Practice. Minnesota law requires the Board to both accept anonymous complaints against licensed physicians, as well as “receive and resolve” those complaints. Despite no further action being taken on any of the complaints beyond initial information gathering, Jensen alleged that the Board’s investigations were politically motivated reactions to his speech, violating the First Amendment. However, the court noted that there was no indication that Jensen was prevented from speaking. In fact, he continued to make public comments on the COVID-19 pandemic after being investigated. Due to Jensen’s failure to allege an injury in fact, the court found he lacked standing to sue.