Roberts v. Inslee

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JANE ELIZABETH ROBERTS; JON No. 24-1949 ALLEMAN; MICHELLE ANDREWS; D.C. No. GINGER BENNETT; LANI 2:23-cv-00295-TOR LAGANOWSKI; INGA MILLER; FRANCISCO OQUENDO; ERIN PALMER; MICHELLE RICHARDSON; MEMORANDUM* PETER SPRINGS; KATHY WOLD; JULIA ZELEPUKHIN, Plaintiffs - Appellants, v. JAY INSLEE, Governor; SHRINERS HOSPITALS FOR CHILDREN SPOKANE; SHRINERS HOSPITALS FOR CHILDREN, INC.; BEVERLY BOKOVITZ; FRANCES FARLEY, M.D.; JERRY GANTT; JOHN MCCABE; PHILLIP GRADY; PETER BREWER, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Submitted July 9, 2025** Seattle, Washington Before: McKEOWN, PAEZ, and SANCHEZ, Circuit Judges. Jane Elizabeth Roberts and eleven others (“Plaintiffs”) were fired from Shriners Hospital for Children in Spokane, Washington (“Shriners”) after they refused to vaccinate themselves against COVID-19, as required by Shriners policy and a Washington state proclamation. Plaintiffs allege that former Governor Inslee, Shriners, and several of Shriners’ executives violated federal and state law by penalizing them for refusing the COVID-19 vaccine, which had only been authorized for emergency use. The district court dismissed all of Plaintiffs’ claims with prejudice. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1. Plaintiffs’ Federal Claims (Counts 1 through 6 & Count 10). Plaintiffs bring claims under 42 U.S.C. § 1983 for violations of (1) their right not to be “[s]ubjected to [i]nvestigational [d]rug[s]” based on various statutes, regulations, agreements, treaties, and a letter (Count One), see Curtis v. Inslee, 154 F.4th 678, 687–90 (9th Cir. 2025); (2) equal protection under the law (Count Two), see id. at 693–95; (3) substantive and procedural due process (Count Three), see id. at 691–93; (4) the “Spending Clause” (Count Four), see id. at 690; and (5) the ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 24-1949 “unconstitutional conditions doctrine” (Count Five), see id. at 687, 690–95.1 Plaintiffs also bring two federal claims under 42 U.S.C. § 247d-6d, id. § 247d-6e, the Public Readiness and Emergency Preparedness Act (Count Six) and 21 U.S.C. § 360bbb-3 (Count Ten), see id. at 687–88. Our recent decision in Curtis, 154 F.4th at 687–95, forecloses each of Plaintiffs’ federal claims. We therefore affirm the district court’s dismissal of these claims. 2. Plaintiffs’ State Law Claims (Counts 7 through 9). Curtis also forecloses Plaintiffs’ Washington state law claims against former Governor Inslee for “employment torts” (Count Eight), see Curtis, 154 F.4th at 695, and against both Inslee and Shriners for “breach of contract” (Count Seven) and “outrage” (Count Nine), id. at 689–90, 696. Plaintiffs’ “employment torts” claim against Shriners fails because Plaintiffs have not plausibly alleged any “legal right or privilege” to refuse COVID-19 vaccination such that they were “unlawful[ly] discharge[d],” in violation of public policy. See Rickman v. Premera Blue Cross, 358 P.3d 1153, 1158 (Wash. 2015) (en banc) (citation omitted) (requiring the plaintiff to prove that her dismissal violates “a clear mandate of public policy . . . ‘previously manifested in the 1 Although Count Five purports to assert a claim under the unconstitutional conditions doctrine, Plaintiffs’ allegations are derivative of their Fourteenth Amendment claims and fail for the reasons explained in Curtis, 154 F.4th at 690– 95. 3 24-1949 constitution, a statute, or a prior court decision’”).2 3. “Misbranding.” To the extent that Plaintiffs allege or seek to allege a “misbranding” claim for violations of 21 U.S.C. § 331, this claim fails as a matter of law.3 Even if federal drug labeling laws were implicated here, they are part of the Federal Food, Drug, and Cosmetic Act (“FDCA”) and are not privately enforceable under 42 U.S.C. § 1983 or on their own. See 21 U.S.C. § 337(a); see also Curtis, 154 F.4th at 687 (explaining that the FDCA forecloses private enforcement of its requirements). 4. Leave to Amend. The district court did not abuse its discretion in denying leave to amend because amendment would be futile. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). Plaintiffs present no argument that their proposed amendments could cure the deficiencies in their claims. AFFIRMED. 2 In light of our determination, we do not reach the parties’ arguments concerning qualified immunity or whether Shriners is a state actor. 3 While Plaintiffs discuss “misbranding” in their opening brief, this claim was not alleged in Plaintiffs’ complaint and so appears to be solely a defensive argument. 4 24-1949