Aaron Kheriaty, M.d. v. Regents of the University of California, a corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON KHERIATY, M.D.,
Plaintiff-Appellant,
v.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA, a corporation; MICHAEL V.
DRAKE, M.D., in his official capacity as
President of the University of California,
Defendants-Appellees.
No. 22-55001
D.C. No.
8:21-cv-01367-JVS-KES
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 9, 2022**
Pasadena, California
Before: MURGUIA, Chief Judge, and PARKER*** and LEE, Circuit Judges.
* 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).
*** The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
NOV 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Dr. Aaron Kheriaty, a professor at the University of California, Irvine School
of Medicine, lost his job because he refused to be vaccinated under the University
of California’s COVID-19 vaccination policy. That policy required him to receive
a COVID-19 vaccine before he could access the school’s facilities. Kheriaty
challenges the constitutionality of the COVID-19 vaccination policy, claiming it
violates his rights under the Fourteenth Amendment’s equal protection and due
process clauses. The district court dismissed the lawsuit. We review de novo the
district court’s grant of judgment on the pleadings. See Herrera v. Zumiez, Inc., 953
F.3d 1063, 1068 (9th Cir. 2020). We affirm.
1. To start, we hold that the district court—in deciding the motion for
judgment on the pleadings—appropriately considered the school’s vaccination
policy and the government websites cited in that policy. Extrinsic evidence will not
convert a motion on the pleadings to a summary judgment motion if (1) the evidence
is submitted as part of the complaint, (2) the plaintiff necessarily relies on the
evidence, or (3) the court can take proper judicial notice of the evidence. Lee v. City
of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Here, the district court
properly took judicial notice of the school’s policy and the government websites;
they are matters of public record made available by the government. See Daniels-
Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Additionally,
Kheriaty’s complaint necessarily relied on the existence of UC’s vaccine policy—

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without the policy there would be nothing to challenge. United States v. Corinthian
Colls., 655 F.3d 984, 999 (9th Cir. 2011).
2. Contrary to Kheriaty’s claim, rational basis review—not strict scrutiny—
applies here. A court will apply strict scrutiny when the challenged government
action infringes on a fundamental right. Reno v. Flores, 507 U.S. 292, 301-02
(1993). A fundamental right must be either enumerated in the Bill of Rights or
“deeply rooted in this Nation’s history and tradition . . . and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (cleaned up).
When determining whether an unenumerated right is fundamental, a court defines
the liberty interest at issue “in a most circumscribed manner” and examines whether
there is a specific historical practice of protecting the defined interest. Khachatryan
v. Blinken, 4 F.4th 841, 856 (9th Cir. 2021) (quoting Obergefell v. Hodges, 576 U.S.
644, 671 (2015)).
Kheriaty fails to offer any appropriate historical example to establish a
“fundamental right” to be free from a vaccine mandate at a workplace. To the
contrary, the Supreme Court upheld a much more onerous vaccine requirement in
Jacobson v. Massachusetts, 197 U.S. 11, 12-13 (1905) (upholding Massachusetts’s
vaccine mandate that applied to all adults and enforced with financial penalties and
criminal charges). Because he has not asserted a fundamental right, rational basis

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review should apply. See Munoz v. Sullivan, 930 F.2d 1400, 1404 (9th Cir. 1991).
3. Under a rational basis review, Kheriaty’s challenge fails. “To
determine whether [the school’s policy] can survive rational basis review, we apply
a two-tiered inquiry. First, we must determine whether the challenged law has a
legitimate purpose. . . . Second, we address whether the challenged law promotes
that purpose.” Erotic Serv. Provider Legal Educ. & Rsch. Project v. Gascon, 880
F.3d 450, 457 (9th Cir.), amended, 881 F.3d 792 (9th Cir. 2018). This inquiry is the
same for both substantive due process and equal protection claims. Munoz, 930 F.2d
at 1404. Kheriaty challenges only the second part of the inquiry.
He maintains that his scientific studies show that previous COVID-19
infections confer natural immunity and that the school’s vaccine policy thus does
not advance the health and safety of the university’s community. Assuming the
validity of his studies’ conclusions, as we must, Kheriaty may have a valid policy
point in criticizing the school’s COVID-19 policy. But under a rational basis review,
it is not enough for a party to merely cite scientific studies challenging the
government’s classification policy. If “there was evidence before the legislature
reasonably supporting the classification, litigants may not procure invalidation of
the legislation merely by tendering evidence in court that the legislature was
mistaken.” See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).
Here, the school cited its own studies that support its vaccination policy—and that

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is enough for the policy to survive rational basis review.
AFFIRMED.

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