Last week we blogged about the Seventh Circuit’s affirmance of a dismissal of yet another case challenging a vaccine mandate. We predicted that our inbox would be visited by dissenters. We were not wrong. One reader rebuked us for our snarky tone. And that reader was not wrong.
Look: to our mind, it is perfectly obvious that Jacobson is binding precedent, and employers and governments can take reasonable measures to protect people. To our mind, following the medical consensus is reasonable. Frankly, we think the other side is mostly unreasonable. But, yes, our language was intemperate.
We have a Joycean memory of a Thanksgiving dinner a couple of years ago when a political argument erupted and we found ourselves calling an uncle, who was a sweet, intelligent man, stupid. Others at the table gasped. We were rude and unkind. We do not mean to inflict that sort of unpleasantness on our readers, or anyone else.
Still, most of the folks who insist on doing their own research are merely scrolling until they find something that is in accord with their predilections. Reason scouts and spies for the passions. Tom Nichols wrote about the Death of Expertise, and he was on to something. Maybe it is due to the internet or political polarization, but there is profound skepticism about experts. Any defense lawyer who files plenty of Rule 702 motions must acknowledge that experts can be wrong. But a medical consensus is more likely to be right than a keyboard warrior. So we plead guilty to deploying a dismissive tone when we consider vaccine cases. To be fair, most courts are literally dismissive. We cannot help it; we harbor doubts about the good faith and rationality of most of the challengers. But we have no such doubts about the reader who took the time to write to us. He has ample reserves of smarts and integrity. We just disagree. And we agree with most of the courts that have wrestled with vaccine mandates.
This week we find ourselves agreeing with Schmidt v. City of Pasadena, et al., 2026 WL 2980130 (9th Cir. Oct. 5, 2026). Schmidt counts as a major, published, appellate application of immunity under the Public Readiness and Emergency Preparedness (PREP) Act, this time against a plaintiff challenging governmental COVID vaccination requirements. This decision should put an end to attacks on employment-related vaccination and related requirements, since they are barred by the PREP Act. Should, but probably won’t.
The plaintiff in Schmidt was a forensic specialist with the Pasadena Police Department. Pasadena implemented a COVID-19 vaccination policy for its employees to “stem the rapid increase in Covid-19 transmission” resulting from the Delta variant of the virus. Employees who successfully invoked exemptions based on religion or sincere beliefs would then be subject to testing and masking requirements. The plaintiff refused the Covid-19 vaccination, eventually complied with the alternative masking and testing requirements, but contended that those requirements created a “hostile work environment.” He sued, setting forth no fewer than 21 claims (some federal and some state) against the masking and testing requirements. Both the district and circuit courts had little difficulty holding that all those claims were barred by the PREP Act preemption (state claims) or immunity (federal claims) provisions. We should point out that the plaintiff also filed motions for recusal of the trial judge and for reconsideration. (Maybe we are not alone in being intemperate on this topic.)
The PREP Act precludes liability against any “covered person” on “any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” The local government was a covered person under the Act since it was administering covered countermeasures and was a “program planner” for such countermeasures. So far, so good.
Vaccination, masking, and testing are all covered countermeasures under applicable emergency use authorizations. (The plaintiff argued that the saliva tests were particularly out of bounds, but the court disagreed.) “Both the PREP Act and the HHS Secretary’s Declaration plainly extend immunity for the administration of COVID-19 tests and masks.”
The plaintiff attempted to use Loper Bright to get the court to disregard the HHS Secretary’s definition of “covered countermeasure.” But the court held that even in the wake of Loper Bright the court “must respect when Congress has ‘expressly delegated to an agency the authority to give meaning to a particular statutory term.’”
The Act’s causation language is exceedingly broad, and is satisfied by any of “caused by, arising out of, relating to, or resulting from” use of countermeasures. The Act’s scope is not limited to any particular category of causes of action. The plaintiff’s alleged emotional distress damages and purported “property interest” in his DNA are all “losses” under the Act and the claims are therefore preempted.
The recusal motion was based on the district judge’s ownership of mutual funds. But ownership in a mutual fund is not considered a “financial interest in such securities unless the judge participates in the management of the fund.”
Finally, the court considered the plaintiff’s motion for Rule 11 sanctions based on the defendants’ disparagement of the plaintiff’s expert for indulging in a “conspiracy theory” and other “outlandish conspiracies.” The court held that such “word choice simply does not meet the criteria for being made without reasonable, competent inquiry.”
The case was dismissed and the plaintiff’s sanctions request was denied.
Is it churlish of us to feel doubly vindicated?
Or should we say triply vindicated?After the Ninth Circuit issued its opinion, the plaintiff filed an emergency motion to vacate the opinion “based on lies, misstatements, false statements, material omissions, and sophistry in the rendered opinion.” Earlier we confessed to being intemperate. But compared to this litigant, we look like Fred Rogers.
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