NOT FOR PUBLICATION FILED

DEC 23 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH M. WILKINS, No. 24-80 D.C. No. Plaintiff - Appellant, 6:23-cv-00169-AA v.

MEMORANDUM*

STEVE HERRON; CHAD

LOWE; STEVEN COOK; PAUL

DEAN; BEND-LAPINE

ADMINISTRATIVE SCHOOL DISTRICT

1, an Oregon Public School District, authorized and chartered by the laws of the State of Oregon,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted December 4, 2024 Portland, Oregon

Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.

Appellant Keith Wilkins, a former public-school teacher, was placed on

unpaid leave and subsequently fired for refusing to comply with COVID-19

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. vaccine and mask mandates. In response, he filed the present action against his

former employer, the Bend La-Pine Administrative School District 1 (“School

District”), as well as four administrators (“Administrators”), asserting various

claims under 42 U.S.C. § 1983 (“Section 1983”). The district court dismissed

Wilkins’s amended complaint without leave to amend, and Wilkins timely

appealed. We have jurisdiction under 28 U.S.C. § 1291. We review the dismissal

of Wilkins’s claims de novo and may affirm on any basis supported by the record.

Kappouta v. Valiant Integrated Servs., LLC, 60 F.4th 1213, 1216 (9th Cir. 2023).

We affirm.

1. Wilkins has failed to state a claim that Defendants violated Section

564 of the Food, Drug, and Cosmetic Act (“FDCA”). The relevant provision

defines the responsibilities of the Secretary of Health and Human Services

(“HHS”) with respect to “ensur[ing] that health care professionals administering”

emergency use products are properly informed and, in turn, “ensur[ing] that

individuals to whom the product is administered” are properly informed. 21

U.S.C. § 360bbb-3(e)(1)(A)(i), (ii). Accordingly, the statute does not regulate the

conduct of Defendants, who are neither HHS officials nor health care

professionals.

Moreover, Wilkins cannot use Section 1983 to enforce Section 564 of the

FDCA. Even when a Section 1983 plaintiff makes a showing that a “federal

2 24-80 statute creates an individually enforceable right in the class of beneficiaries to

which he belongs,” a defendant may rebut the “presumption that the right is

enforceable under § 1983” by “demonstrating that Congress did not intend that

remedy for a newly created right.” City of Rancho Palos Verdes v. Abrams, 544

U.S. 113, 120 (2005) (citations and quotation marks omitted). “[E]vidence of such

congressional intent may be found directly in the statute creating the right, or

inferred from the statute’s creation of a ‘comprehensive enforcement scheme that

is incompatible with individual enforcement under § 1983.’” Id. at 120 (cleaned

up). “The express provision of one method of enforcing a substantive rule

suggests that Congress intended to preclude others.” Id. at 121 (citation and

quotation marks omitted).

Even assuming that Wilkins has made the requisite showing of an

individually enforceable right, Defendants have successfully rebutted the

presumption that any such right is enforceable under Section 1983. Section 310 of

the FDCA provides that, with specified exceptions for proceedings brought by the

states, “all such proceedings for the enforcement, or to restrain violations, of [the

FDCA] shall be by and in the name of the United States.” 21 U.S.C. § 337(a).

Thus, “[t]he FDCA leaves no doubt that it is the Federal Government rather than

private litigants who are authorized to file suit for noncompliance with the medical

device provisions.” Buckman Co. v. Pls.’ Legal Comm., 531 U.S. 341, 349 n.4

3 24-80 (2001).

2. Wilkins’s remaining claims against the School District fail to state a

claim under Monell v. Department of Social Services of City of New York, 436 U.S.

658 (1978).

Monell requires a plaintiff suing a municipal entity under Section 1983 to

“show that [his] injury was caused by a municipal policy or custom.” Los Angeles

County v. Humphries, 562 U.S. 29, 31 (2010). A municipality may be held liable

“only for its own violations of federal law,” id. at 36, and a municipal policy or

custom must constitute a “deliberate choice to follow a course of action . . . made

from among various alternatives,” Benavidez v. County of San Diego, 993 F.3d

1134, 1153 (9th Cir. 2021) (citations and quotation marks omitted).

Wilkins claims that the School District violated his constitutional rights by

enforcing Oregon’s regulatory vaccine and mask mandates for public school

employees. See Or. Admin. R. 333-019-1015, 333-019-1030. Wilkins does not

dispute that the School District was bound by state law to enforce these mandates,

but he argues that the School District may nevertheless be held liable based on

Evers v. Custer County, 745 F.2d 1196 (9th Cir. 1984).

Evers is distinguishable. There, the plaintiff’s claimed injury—the

deprivation of her property interests without due process—was caused by

municipal conduct that was not required by state law. Although a state law had

4 24-80 made it the “duty of the commissioners to record as public highways roads which

have become such by use,” id. at 1198 n.1, it left the determination of whether the

road in question was a public highway to the commissioners and did not prohibit

them from providing the plaintiff with notice and an opportunity to be heard. By

contrast, Wilkins has failed to allege that his injuries were caused by any conduct

of Defendants not required by state law. Instead, he concedes that state laws

required school employees to be vaccinated and to wear masks and that those laws

were binding on the School District.

Accordingly, Wilkins has failed to allege that his injuries are traceable to

any policy or custom of the School District, as opposed to state law. Cf. Sandoval

v. County of Sonoma, 912 F.3d 509, 517-18 (9th Cir. 2018) (policy or custom

requirement met where municipalities erroneously interpreted state law);

Humphries v. County of Los Angeles, 554 F.3d 1170, 1202 (9th Cir. 2008), as

amended (Jan. 30, 2009) (remanding for determination of whether plaintiffs could

meet policy or custom requirement based on theory that municipality failed to take

action that was not prohibited by state law), rev’d on other grounds, 562 U.S. 29

(2010).

3. Wilkins’s remaining claims against the individual Administrators fail

on qualified immunity grounds.

“The doctrine of qualified immunity protects government officials from

5 24-80 liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was

“clearly established” at the time of the challenged conduct.’” Wood v. Moss, 572

U.S. 744, 757 (2014) (citation omitted). “The plaintiff bears the burden of pointing

to prior case law that articulates a constitutional rule specific enough to alert these

officers in this case that their particular conduct was unlawful.” Hughes v.

Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (cleaned up). The plaintiff is not

required to cite “a case directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate.” Mullenix v. Luna, 577

U.S. 7, 12 (2015) (per curiam) (citation omitted).

At the time the Administrators enforced the vaccine and mask mandates,

there was no clearly established due process right to refuse a vaccine or to wear a

mask during a pandemic. To the contrary, Jacobson v. Commonwealth of

Massachusetts, 197 U.S. 11 (1905), had upheld a government vaccine mandate

over objections about the vaccine’s efficacy and safety. As a result, the

Administrators could have reasonably believed that they could require their

employees to receive a COVID-19 vaccination and to comply with the much less

invasive measure of wearing a mask. Indeed, since the onset of the COVID-19

pandemic, numerous courts have rejected claims that COVID-19 vaccine

6 24-80 mandates1 or mask mandates2 violate individuals’ substantive due process rights,

which illustrates that any purported due process right to refuse a vaccine or to wear

a mask during a pandemic was not clearly established.

There also was no clearly established First Amendment right to refuse to

wear a mask on compelled speech grounds. Under Rumsfeld v. Forum for

Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), conduct cannot “be

labeled ‘speech’ whenever the person engaging in the conduct intends thereby to

express an idea.” Id. at 65-66 (citation omitted). Instead, “First Amendment

protection” extends “only to conduct that is inherently expressive.” Id. at 66.

When an observer has “no way of knowing” that conduct is intended to express a

message unless it is “accompanied” by “speech explaining it,” that is “strong

evidence that the conduct at issue” is “not so inherently expressive that it warrants

protection.” Id. Accordingly, in Jacobs v. Clark County School District, 526 F.3d

419 (9th Cir. 2008), we rejected a claim that a school uniform policy compels

1 E.g., Child.’s Health Def., Inc. v. Rutgers, the State Univ. of N.J., 93 F.4th 66, 78 & n.25 (3d. Cir. 2024), cert. denied 144 S. Ct. 2688 (2024); Brox v. Hole, 83 F.4th 87, 100-01(1st Cir. 2023); Norris v. Stanley, 73 F.4th 431, 435-37 (6th Cir. 2023), cert. denied 144 S. Ct. 1353 (2024); Lukaszczyk v. Cook County, 47 F.4th 587, 599-603 (7th Cir. 2022), cert. denied sub nom. Troogstad v. City of Chicago, 143 S. Ct. 734 (2023); Klaassen v. Trs. of Ind. Univ., 7 F.4th 592, 592-94 (7th Cir. 2021); We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293-94 (2d Cir. 2021) (per curiam), opinion clarified, 17 F.4th 368 (2d Cir. 2021). 2 E.g., Doe v. Franklin Square Union Free Sch. Dist., 100 F.4th 86, 96-97 (2d. Cir. 2024) (collecting cases), cert. denied No. 24-340, 2024 WL 4805912 (U.S. Nov. 18, 2024).

7 24-80 inherently expressive conduct—namely, that students express a message of

uniformity—because it was “unlikely anyone viewing a uniform-clad student

would understand the student to be communicating a particular message via his or

her mandatory dress.” Id. at 428; see id. at 437-38.

Thus, the Administrators could have reasonably believed that wearing a

mask was not inherently expressive conduct and, therefore, that the mask mandate

did not compel speech in violation of the First Amendment. As with Wilkins’s

substantive due process claims, courts have rejected Wilkins’s compelled speech

claim,3 which further demonstrates that Wilkins’s asserted First Amendment right

was not clearly established.

4. Because Wilkins has failed to show that he could amend his complaint

to cure these defects, we affirm the district court’s dismissal of his claims without

leave to amend. See Huffman v. Lindgren, 81 F.4th 1016, 1021-22 (9th Cir.

2023).4

AFFIRMED.

3 E.g., Falcone v. Dickstein, 92 F.4th 193, 205-10 & n.10 (3d Cir. 2024) (collecting cases), cert. denied sub nom. Murray-Nolan v. Rubin, 144 S. Ct. 2560 (2024). 4 We need not address Wilkins’s remaining arguments, including his arguments based on Health Freedom Defense Fund, Inc. v. Carvalho, 104 F.4th 715 (9th Cir. 2024), petition for reh’g en banc filed (9th Cir. June 21, 2024).

8 24-80