NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRENDA HORSLEY; CYNTHIA No. 24-5812 ANDERSON; VINCENT D.C. No. LANCHINEBRE; JUSTIN RAWSON; 3:23-cv-05628-AMO DANIEL RUVALCABA; PATRICIA UNDERHILL; COURTNEY WOLFENSTEIN; KRISTI SHEPHERD; MEMORANDUM* JANET MANNING; MARIA SAMANTHA DE LA CRUZ; JEFF FOLKES; MICHAEL JANG; JOSHUA PACHECO; MICHELLE MASSA,
Plaintiffs - Appellants,
v.
KAISER FOUNDATION HOSPITALS, INC.; GAVIN NEWSOM, Governor of California; TOMAS J. ARAGON; GREG ADAMS; ANDREW BINDMAN,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding
Submitted October 22, 2025**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: MURGUIA, Chief Judge, FORREST, Circuit Judge, and COLLINS, District Judge.***
Plaintiffs-Appellants (“Plaintiffs”) are former healthcare employees of
Kaiser Foundation Hospitals, Inc. (“KFH”) who were terminated for refusing to
take the COVID-19 vaccine and failing to provide an exemption in violation of
KFH’s vaccination policy and the State of California’s health order. Plaintiffs
bring their claims against KFH and its executive officers Greg Adams and Andrew
Bindman, M.D. (collectively, “Kaiser Defendants”), as well as the Governor of the
State of California Gavin Newsom, and the Director of California’s Department of
Public Health Tomas Aragón (collectively, “State Defendants”). Plaintiffs appeal
the dismissal of their six federal claims under 42 U.S.C. § 1983, their implied right
of action claim under 21 U.S.C. § 360bbb-3, and their two state-law claims. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s dismissal for failure to state a claim de novo.
Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). We accept as
true all factual allegations in the complaint and construe the pleadings in the light
most favorable to the nonmoving party. Id.
*** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
2 24-5812 1. The district court did not err in dismissing Plaintiffs’ six federal claims
under Section 1983. Plaintiffs bring four claims stylized as “Subjected to
Investigational Drug Use,” “Deprivation of Rights Under the Spending Clause,”
“Unconstitutional Conditions Doctrine,” and “PREP Act.” Plaintiffs assert these
claims based on 21 U.S.C. § 360bbb-3, 10 U.S.C. § 980, 42 U.S.C. § 247d-6,
Article VII of the International Covenant on Civil and Political Rights Treaty
(“ICCPR”), 45 C.F.R. § 46, the Belmont Report, the Federal Wide Assurance
(“FWA”) Agreement, the COVID-19 Vaccination Program Provider Agreement,
and Emergency Use Authorizations. See also Curtis v. Inslee, 154 F.4th 678, 686–
90 (9th Cir. 2025) (relying on identical authorities).
Plaintiffs’ “kitchen sink” approach does not hold up, as none of Plaintiffs’
claims allege “a specific and definite right enforceable by Plaintiffs under Section
1983.” Id. at 685, 687 (addressing identical authorities). Moreover, to the extent
Plaintiffs invoke the Supremacy Clause to support their claims, the Supremacy
Clause “‘is not a source of any federal rights’ enforceable under Section 1983.” Id.
at 690 (quoting Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 107
(1989)).
Plaintiffs’ two Section 1983 claims pursuant to the Fourteenth Amendment
fare no better because they are foreclosed by our decision in Curtis. See id. at
691–92 (citing Health Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th
3 24-5812 Cir. 2025) (en banc) and Jacobson v. Massachusetts, 197 U.S. 11 (1905)). And the
penalties imposed on Plaintiffs here “were amply justified by public health
concerns.” Id. at 692. Plaintiffs’ procedural due process claim also fails because
Plaintiffs’ at-will employment with KFH is not a constitutionally protected
property interest under the Fourteenth Amendment, id. (citing Portman v. Cnty. of
Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)), and the process the state created
for granting religious and medical exemptions “fulfilled the purpose of the
requisite pretermination hearing,” id. at 693 (quoting Clements v. Airport Auth. of
Washoe Cnty., 69 F.3d 321, 332 (9th Cir. 1995)). Plaintiffs also raise an equal
protection claim. This claim likewise fails, as the state action, enforcing a vaccine
mandate, “easily survives rational-basis review.” Id. at 694.
Thus, we affirm the dismissal of Plaintiffs’ claims brought under Section
1983. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We
may affirm a district court’s judgment on any ground supported by the record.”).1
2. The district court did not err in dismissing Plaintiffs’ implied right of
action claim under 21 U.S.C. § 360bbb-3. Section 360bbb-3, a provision of the
Food, Drug, and Cosmetic Act (“FDCA”), contains no “‘rights-creating language’
that places ‘an unmistakable focus’ on the individuals protected instead of the
1 We need not decide the questions of state action and qualified immunity addressed by the district court.
4 24-5812 person regulated.” Saloojas, Inc. v. Aetna Health of Cal., Inc., 80 F.4th 1011, 1015
(9th Cir. 2023) (emphasis omitted) (quoting UFCW Loc. 1500 Pension Fund v.
Mayer, 895 F.3d 695, 699 (9th Cir. 2018)). Furthermore, Section 337 of the
FDCA expressly states that all proceedings to enforce the FDCA “shall be by and
in the name of the United States,” 21 U.S.C. § 337(a), confirming Congress’s
intent not to create a private right of action in one of the FDCA’s provisions. POM
Wonderful LLC v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRENDA HORSLEY; CYNTHIA No. 24-5812 ANDERSON; VINCENT D.C. No. LANCHINEBRE; JUSTIN RAWSON; 3:23-cv-05628-AMO DANIEL RUVALCABA; PATRICIA UNDERHILL; COURTNEY WOLFENSTEIN; KRISTI SHEPHERD; MEMORANDUM* JANET MANNING; MARIA SAMANTHA DE LA CRUZ; JEFF FOLKES; MICHAEL JANG; JOSHUA PACHECO; MICHELLE MASSA,
Plaintiffs - Appellants,
v.
KAISER FOUNDATION HOSPITALS, INC.; GAVIN NEWSOM, Governor of California; TOMAS J. ARAGON; GREG ADAMS; ANDREW BINDMAN,
Defendants - Appellees.
Appeal from the United States District Court for the Northern District of California Araceli Martinez-Olguin, District Judge, Presiding
Submitted October 22, 2025**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). San Francisco, California
Before: MURGUIA, Chief Judge, FORREST, Circuit Judge, and COLLINS, District Judge.***
Plaintiffs-Appellants (“Plaintiffs”) are former healthcare employees of
Kaiser Foundation Hospitals, Inc. (“KFH”) who were terminated for refusing to
take the COVID-19 vaccine and failing to provide an exemption in violation of
KFH’s vaccination policy and the State of California’s health order. Plaintiffs
bring their claims against KFH and its executive officers Greg Adams and Andrew
Bindman, M.D. (collectively, “Kaiser Defendants”), as well as the Governor of the
State of California Gavin Newsom, and the Director of California’s Department of
Public Health Tomas Aragón (collectively, “State Defendants”). Plaintiffs appeal
the dismissal of their six federal claims under 42 U.S.C. § 1983, their implied right
of action claim under 21 U.S.C. § 360bbb-3, and their two state-law claims. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s dismissal for failure to state a claim de novo.
Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). We accept as
true all factual allegations in the complaint and construe the pleadings in the light
most favorable to the nonmoving party. Id.
*** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.
2 24-5812 1. The district court did not err in dismissing Plaintiffs’ six federal claims
under Section 1983. Plaintiffs bring four claims stylized as “Subjected to
Investigational Drug Use,” “Deprivation of Rights Under the Spending Clause,”
“Unconstitutional Conditions Doctrine,” and “PREP Act.” Plaintiffs assert these
claims based on 21 U.S.C. § 360bbb-3, 10 U.S.C. § 980, 42 U.S.C. § 247d-6,
Article VII of the International Covenant on Civil and Political Rights Treaty
(“ICCPR”), 45 C.F.R. § 46, the Belmont Report, the Federal Wide Assurance
(“FWA”) Agreement, the COVID-19 Vaccination Program Provider Agreement,
and Emergency Use Authorizations. See also Curtis v. Inslee, 154 F.4th 678, 686–
90 (9th Cir. 2025) (relying on identical authorities).
Plaintiffs’ “kitchen sink” approach does not hold up, as none of Plaintiffs’
claims allege “a specific and definite right enforceable by Plaintiffs under Section
1983.” Id. at 685, 687 (addressing identical authorities). Moreover, to the extent
Plaintiffs invoke the Supremacy Clause to support their claims, the Supremacy
Clause “‘is not a source of any federal rights’ enforceable under Section 1983.” Id.
at 690 (quoting Golden State Transit Corp. v. City of L.A., 493 U.S. 103, 107
(1989)).
Plaintiffs’ two Section 1983 claims pursuant to the Fourteenth Amendment
fare no better because they are foreclosed by our decision in Curtis. See id. at
691–92 (citing Health Freedom Def. Fund, Inc. v. Carvalho, 148 F.4th 1020 (9th
3 24-5812 Cir. 2025) (en banc) and Jacobson v. Massachusetts, 197 U.S. 11 (1905)). And the
penalties imposed on Plaintiffs here “were amply justified by public health
concerns.” Id. at 692. Plaintiffs’ procedural due process claim also fails because
Plaintiffs’ at-will employment with KFH is not a constitutionally protected
property interest under the Fourteenth Amendment, id. (citing Portman v. Cnty. of
Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)), and the process the state created
for granting religious and medical exemptions “fulfilled the purpose of the
requisite pretermination hearing,” id. at 693 (quoting Clements v. Airport Auth. of
Washoe Cnty., 69 F.3d 321, 332 (9th Cir. 1995)). Plaintiffs also raise an equal
protection claim. This claim likewise fails, as the state action, enforcing a vaccine
mandate, “easily survives rational-basis review.” Id. at 694.
Thus, we affirm the dismissal of Plaintiffs’ claims brought under Section
1983. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003) (“We
may affirm a district court’s judgment on any ground supported by the record.”).1
2. The district court did not err in dismissing Plaintiffs’ implied right of
action claim under 21 U.S.C. § 360bbb-3. Section 360bbb-3, a provision of the
Food, Drug, and Cosmetic Act (“FDCA”), contains no “‘rights-creating language’
that places ‘an unmistakable focus’ on the individuals protected instead of the
1 We need not decide the questions of state action and qualified immunity addressed by the district court.
4 24-5812 person regulated.” Saloojas, Inc. v. Aetna Health of Cal., Inc., 80 F.4th 1011, 1015
(9th Cir. 2023) (emphasis omitted) (quoting UFCW Loc. 1500 Pension Fund v.
Mayer, 895 F.3d 695, 699 (9th Cir. 2018)). Furthermore, Section 337 of the
FDCA expressly states that all proceedings to enforce the FDCA “shall be by and
in the name of the United States,” 21 U.S.C. § 337(a), confirming Congress’s
intent not to create a private right of action in one of the FDCA’s provisions. POM
Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 109 (2014). Finally, “Section
360bbb-3 does not create a private right of action that is enforceable under Section
1983.” Curtis, 154 F.4th at 687.
3. The district court did not err in finding that Plaintiffs waived their state-
law claims against the State Defendants. A plaintiff who makes a claim but fails to
the raise the issue in response to a motion to dismiss “has effectively abandoned
his claim.” Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 1037 (9th Cir.
2006). Plaintiffs do not dispute that they failed to oppose dismissal of their state-
law claims against State Defendants before the district court.2
4. The district court did not abuse its discretion in dismissing without leave
2 The district court further declined to exercise supplemental jurisdiction over Plaintiffs’ state-law claims against Kaiser Defendants. We review “a district court’s dismissal of supplemental state-law claims for an abuse of discretion.” Bryant v. Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir. 2002) (citation omitted). Because the district court did not err in dismissing the federal claims, “it did not abuse its discretion in dismissing the state-law claims.” See id. at 1169 (citing 28 U.S.C. § 1367(c)(3)).
5 24-5812 to amend. The “district court may dismiss without leave where a plaintiff’s
proposed amendments would fail to cure the pleading deficiencies and amendment
would be futile.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1041 (9th Cir. 2011) (citing Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
Inc., 911 F.2d 242, 247 (9th Cir. 1990) (per curiam)). Plaintiffs requested leave to
amend their complaint to include a new claim for deprivation of Plaintiffs’
“fundamental right to refuse unwanted medical treatment,” under a new theory that
the COVID-19 injections were “medical treatment” rather than vaccinations.
However, this new claim suffers from the same pleading deficiencies outlined by
the district court in its order. Thus, the district court did not abuse its discretion in
finding amendment would be futile.
AFFIRMED.
6 24-5812