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Challenge to LAUSD Vaccine MandateHFDF LawsuitsNews

Voluntary Cessation Does Not Moot Judicial Review

By November 1, 2023No Comments

On October 20, 2023, the Ninth Circuit Court of Appeals ordered the Los Angeles Unified School District (LAUSD) as follows:

Appellees [LAUSD] shall file a separate motion to dismiss in accordance with Rule 27, Federal Rules of Appellate Procedure, no later than Monday, October 30, 2023. In its motion, Appellees should address whether the voluntary cessation exception to the mootness doctrine applies. 

To recap recent events, on September 14, 2023 during oral argument, the Ninth Circuit Court of Appeals delivered what can only be described as ridicule to LAUSD’s attorney, Connie Michaels, after learning that the school district still continued its Covid injection mandate for employees more than two years after issuing it in August of 2021 – more than two years after CDC released updated guidance explaining that the Covid injections did not stop transmission or infection.

Then, right after the court had been adjourned, Michaels sniped at HFDF’s attorney, “What are you going to do when they [LAUSD] rescind the mandate?”

From Michaels’ remark, one can only conclude that she intended to tell her client to rescind the mandate as soon as possible so she and LAUSD could argue that the lawsuit is moot in a cynical attempt to disappear the case thereby avoiding judicial review of the school district’s illegal acts.

Since the Biden administration rescinded the public health emergency on May 11, 2023, the Department of Justice (DOJ) has argued that ongoing lawsuits are moot as the health emergency is over. Unfortunately for health freedom advocates wishing to clarify laws surrounding medical mandates and government overreach during the Covid era, the courts have been obliging DOJ by dismissing the cases.

So, it was little surprise that on September 262023, less than two weeks after the hearing, LAUSD’s Board of Education did exactly what Michaels had said it would do – it voted to rescind the mandate.

In order to apprise the Ninth Circuit Court of this new development, the plaintiffs/appellants (HFDF et al.) filed a Request for Judicial Notice with the court attaching a newspaper article reporting that LAUSD had, in fact, finally rescinded its Covid injection mandate shortly after the hearing.

In response, on October 4, 2023, Michaels followed through on her threat to our attorney and requested that the Court dismiss the case as moot given LAUSD’s rescission of the mandate. Michaels wrote in her brief to the court, “Appellants’ speculation that LAUSD voted to rescind the COVID-19 vaccination policy “in response to ridicule” of its oral argument is not only unsupported by any evidence, but also patently false.”

If that is the case, then why did Michaels turn to our attorney as court adjourned and ask what he would do when LAUSD rescinded the mandate, as though that was her ace in the hole regarding the case?

Unfortunately for Michaels, this is not the first time LAUSD and its attorneys have been caught misleading the court – they also represented to the district court in July of 2021 that they did not intend to mandate the Covid injections in order to have the first case dismissed as moot, only to turn around and mandate the injection just 17 days after dismissal of the first case. In a further blow to its credibility, during deposition in the second case, HFDF’s attorneys learned from LAUSD executives that LAUSD was indeed drafting a Covid injection mandate for staff in early July of 2021 at the same time that they were representing to the court they did not intend to mandate the vaccine.

LAUSD lied to the court.

On October 19, 2023, the Ninth Circuit of Appeals ordered LAUSD to address whether the voluntary cessation exception to the mootness doctrine applies. LAUSD has tried to argue that the case against it is now moot since the school district has rescinded its mandate but the voluntary cessation doctrine says that when a party voluntarily ceases an illegal act, that rescission does not deprive the court of its authority to review the illegal act if the purpose of the voluntary cessation serves to evade judicial review and the illegal act is capable of repetition.

There can be no doubt that LAUSD ceased its policy to evade judicial review – the school district’s attorney communicated that intention to HFDF’s attorney in no uncertain terms; and LAUSD has already demonstrated that the policy is capable of repetition as the school district has already repeated a Covid injection mandate for employees.

It seems fairly obvious that LAUSD’s machinations are designed to make the case go away but the Ninth Circuit, by ordering LAUSD to address it regarding voluntary cessation, has signaled it may not accept that argument.

If the plaintiffs prevail in the appeal, the case will be remanded back to the district court where depositions, discovery, and litigation will recommence so that the plaintiffs may prove their case in court.

The major issues before the court regard whether Jacobson v. Massachusetts, a Supreme Court case from 1905, applies to Covid injections and whether Jacobson applies at all in the 21st Century given recent decades of case law which have determined that Americans possess the right to privacy, to bodily autonomy, and to refuse unwanted medical interventions even if they might be life-saving.

If plaintiffs prevail in proving that the COVID injections are nothing more than therapeutics and that Jacobson must be reconciled with recent jurisprudence, Americans will no longer face coercion in medicine. And HFDF will have achieved one of its major goals: codifying in law the absolute right to bodily autonomy.

LAUSD’s irrational COVID vaccine mandate is being challenged by Health Freedom Defense Fund, California Educators for Medical Freedom, and individual named plaintiffs.

See this op-ed originally posted on BizPac Review.