Brock v. City of Bellingham

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2026
• Docket: 25-1070
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL BROCK; MATTHEW LEROY No. 25-1070 ALLBAUGH; CRAIG BREWER; KELLY D.C. No. GAMBINI; ROBERT VINCENT 2:24-cv-00850-BJR GLORIOSO; JASON HAGIN; DANIEL LARSEN; BRIAN LONG; SHAWN CURTIS MANTHEY; PAUL MEMORANDUM* PLUSCHAKOV; CALEB RODRIGUEZ; HANNAH SNAVELY; ANGELA TERRY; DION TERRY; TAWSHA KATHLEEN THOMPSON; WILLIAM TRAVIS TRUEMAN; TIMOTHY VAN DYKE; TIM VANDERMEY; ELISABETH OAKES; GALINA D'AMELIO; JOEL DOUGLAS; BRENNAN JACOBY; JEREMIAH LELAND; DAVID LITTLE; NEAL LUNDE; REBEKAH ROYEV,

Plaintiffs - Appellants,

v.

CITY OF BELLINGHAM; SETH FLEETWOOD, Mayor, City of Bellingham, Washington,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Barbara Jacobs Rothstein, District Judge, Presiding

Submitted May 20, 2026** Seattle, Washington

Before: TALLMAN, CLIFTON, and R. NELSON, Circuit Judges.

This case arises from a COVID-19 vaccine mandate imposed by Seth

Fleetwood, the Mayor of the City of Bellingham. Plaintiffs-Appellants, former

City employees, were fired after they refused to comply with the mandate. They

now appeal from the district court’s order dismissing their Second Amended

Complaint (SAC) with prejudice and without leave to amend. We affirm.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the grant

of a motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). Saloojas, Inc. v. Aetna Health of Cal., Inc., 80 F.4th 1011,

1014 (9th Cir. 2023). Denial of leave to amend is reviewed for abuse of discretion.

Curtis v. Inslee, 154 F.4th 678, 695 (9th Cir. 2025), petition for cert. filed, No. 25-

1119 (U.S. Mar. 5, 2026).

1. The district court did not err in dismissing the SAC for failure to state

a claim. Plaintiffs-Appellants presented nine causes of action under 42 U.S.C.

§ 1983 and two causes of action under Washington common law.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 25-1070 Plaintiffs-Appellants failed to state a claim that they were deprived of the

option to accept or refuse without consequence administration of drugs authorized

for emergency use because their first cause of action relies on sources that do not

create rights enforceable under § 1983. See Curtis, 154 F.4th at 687–91.

Plaintiffs-Appellants failed to state a claim for violations of equal protection

or substantive due process under the Fourteenth Amendment. Their claims under

both doctrines are subject to rational basis review. Id. at 691–94; Health Freedom

Def. Fund v. Carvalho, 148 F.4th 1020, 1025, 1029–33 (9th Cir. 2025) (en banc).

Accepting as true the factual allegations in the SAC and its attachments, the

information available to Mayor Fleetwood showed: (1) that the Food and Drug

Administration (FDA) had found, and Pfizer’s data confirmed, that the Pfizer-

BioNTech COVID-19 Vaccine provided protection against COVID-19 to at least

84% of recipients, with protection levels decreasing over time; (2) that

COMIRNATY, which was FDA-licensed, had the same formulation as the Pfizer-

BioNTech COVID-19 Vaccine; and (3) that the two products could be used

interchangeably to provide the vaccination series without presenting any safety or

effectiveness concerns. In addition, the Pfizer-BioNTech COVID-19 Vaccine

posed a significant risk of serious adverse effects and did not prevent transmission

of or infection with COVID-19—it only lessened the severity of symptoms. The

FDA concluded that the Pfizer-BioNTech COVID-19 Vaccine’s known and

3 25-1070 potential benefits outweighed its known and potential risks.

We have already concluded that substantially similar mandates, which were

imposed for substantially similar reasons, survive rational basis review. Curtis,

154 F.4th at 691–95; Carvalho, 148 F.4th at 1029–33. Plaintiffs-Appellants allege

no facts that materially distinguish their case from Curtis or Carvalho.

To the extent Plaintiffs-Appellants rely on the PREP Act, 42 U.S.C. § 247d-

6d, -6e, to support a substantive due process claim, the claim is foreclosed by

Curtis, 154 F.4th at 692.

Plaintiffs-Appellants fail to state a claim for deprivation of procedural due

process under the Fourteenth Amendment. We assume without deciding that

Plaintiffs-Appellants alleged deprivation of a constitutionally protected interest.

We have already held that employees received sufficient process related to a

vaccine mandate if they received “notice of the vaccination requirements and of

the consequence of termination for failure to comply,” and “opportunities to be

heard for the purpose of religious and medical exemptions.” Id. at 693. Here, the

mandate provided for individualized religious and medical exemptions, which at

least some Plaintiffs-Appellants applied for. While Plaintiffs-Appellants allege

that their requests should have been accepted but were not, they fail to allege any

other facts concerning the adequacy of their requests or the exemption process.

This is insufficient to state a plausible claim for a procedural due process violation.

4 25-1070 See id.

We do not consider Plaintiffs-Appellants’ causes of action for alleged

deprivation of their right to informational privacy under federal law, for liability

under Monell v. Department of Social Services, 426 U.S. 658 (1978), or for their

state law claims. Plaintiffs-Appellants abandoned these claims on appeal, as they

fail to cite or discuss any relevant authority, or make any argument concerning the

application of relevant law to these claims. See Indep. Towers of Wash. v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“A bare assertion of an issue does

not preserve a claim,” and this Court “will not consider any claims that were not

actually argued . . . specifically and distinctly in a party’s opening brief.”).

Plaintiffs-Appellants’ cause of action for alleged violation of the

unconstitutional conditions doctrine necessarily fails because they have failed to

state a claim that the vaccine mandate violated any of their constitutional rights.

Thus, they have failed to state a claim that the Defendants “den[ied] a benefit to

[them] on a basis that infringes [their] constitutionally protected interests.” Perry

v. Sindermann, 408 U.S. 593, 597 (1972).

2. We need not address whether the Pfizer-BioNTech COVID-19

Vaccine was classified as an “investigational drug” at the relevant time because its

status does not affect our analysis. See Curtis, 154 F.4th at 691.

3. The district court did not abuse its discretion in denying leave to

5 25-1070 amend the SAC. Plaintiffs-Appellants filed their SAC with the district court’s

leave after the motion to dismiss was fully briefed and before the district court

issued its order. Despite being on notice of the potential deficiencies in their First

Amended Complaint, Plaintiffs-Appellants made no substantive amendments in the

SAC to address those potential deficiencies. Moreover, they have never identified

(either below or on appeal) what amendments they might make and how those

amendments might cure the SAC’s deficiencies. Given that our precedent

forecloses Plaintiffs-Appellants’ claims and they have failed to identify how they

could cure the SAC’s deficiencies, the district court did not err in concluding that

amendment would be futile. See Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d

1048, 1051–52 (setting forth the factors to consider when deciding whether to

grant leave to amend).

AFFIRMED.1

1 The parties’ respective motions for judicial notice, which were made in the opening and answering briefs, are denied. The motion for leave to file an amicus brief, Dkt. No. 16, is granted.

6 25-1070