FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL BACON; ANDREA             No. 22-35611
KERNKAMP; JOE HOWARTH;
BRENNAN COOKE; TIM                   D.C. No.
WHEELER; TOM HARVEY; JOEL         2:21-cv-00296-
BROSE; TANNER TOWNSEND;                TOR
CURTIS SMITH; ISAIAH DEAN;
NICHOLAS HOLMES; MATTHEW
NORTON; JHAR FULLER; STEVEN         OPINION
HOWIE; JEFFREY BAXTER; ARIC
PISA; DUANE WILCOX; DAVID
HEIZER; JAMES BILLMAN;
MARLIN THORMAN; JASON
WEBSTER; TIMOTHY ARCHER;
COREY BARKER; SCOTT
MCCANN; CONNOR FOXWOTH,
Firefighters,

         Plaintiffs-Appellants,

 v.

NADINE WOODWARD, Mayor of
the City of Spokane; BRIAN
SCHAEFFER, Fire Chief; CITY OF
SPOKANE,

         Defendants-Appellees,
2                     BACON V. WOODWARD


    and

JAY ROBERT INSLEE, Governor,
State of Washington; ROBERT
FERGUSON, Attorney General, State
of Washington,

             Intervenor-Defendants-
             Appellees.

          Appeal from the United States District Court
            for the Eastern District of Washington
           Thomas O. Rice, District Judge, Presiding

          Argued and Submitted September 14, 2023
                    Seattle, Washington

                      Filed June 18, 2024

     Before: Michael Daly Hawkins, Ryan D. Nelson, and
              Daniel P. Collins, Circuit Judges.

                 Opinion by Judge R. Nelson;
                  Dissent by Judge Hawkins
                       BACON V. WOODWARD                           3


                          SUMMARY*


              Free Exercise Clause/COVID-19

    The panel reversed the district court’s grant of judgment
on the pleadings to the City of Spokane and Washington
state defendants, and remanded, in an action brought by City
of Spokane firefighters who alleged that Governor Inslee’s
COVID-19 Proclamation, which required workers for state
agencies to be fully vaccinated, violated the Free Exercise
Clause as applied to them.
    Plaintiffs alleged that Spokane refused to grant their
religious exemption and accommodation requests,
terminated them for failing to get vaccinated, and then turned
to firefighters from neighboring fire departments to fill the
gaps even though those fire departments granted religious
accommodations to their employees.
    The panel first held that plaintiffs’ claims for
retrospective and prospective relief were not moot even
though the Proclamation was rescinded. Plaintiffs preserved
their request for punitive damages through a timely appeal,
and the district court could require Spokane to reinstate
plaintiffs.
   Turning to the merits of plaintiffs’ as-applied Free
Exercise challenge to Spokane and its officials’
implementation     of   the    Proclamation’s    religious
accommodation policy, the panel held that strict scrutiny
applied because Spokane’s implementation of the policy was

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                    BACON V. WOODWARD


not generally applicable. The policy exempted certain
firefighters based on a secular criterion—being a member of
a neighboring department—while holding firefighters who
objected to vaccination on purely religious grounds to a
higher standard.
    The panel next held that, as alleged in the complaint, the
City’s application of the Proclamation was not narrowly
tailored to advance the government’s compelling interest in
stemming the spread of COVID-19. Less restrictive steps
could have been taken to accomplish the same compelling
purpose, such as testing and masking, taking temperatures
and continuing to social distance. Moreover, the
Proclamation, as applied, was fatally underinclusive. By
requiring its own employees to be vaccinated without
accommodation while continuing to work with unvaccinated
firefighters from other counties, Spokane’s application of the
Proclamation failed to fully account for the issues that would
undermine its interest. Plaintiffs, therefore, plausibly alleged
that Spokane applied the Proclamation in violation of the
Free Exercise Clause. Finally, plaintiffs should have been
given leave to amend their complaint.
    Dissenting, Judge Hawkins would apply rational basis
review to plaintiffs’ as-applied claim. The City Defendants
applied the Proclamation to their employees uniformly and
treated medical and religious objectors the same. Allegations
that pre-existing mutual aid agreements with neighboring
fire departments allowed some unvaccinated firefighters
from neighboring departments to operate within the City of
Spokane were insufficient to plausibly show that the
Proclamation, as implemented by the City Defendants, was
not neutral or generally applicable. Under rational basis
review, Judge Hawkins would affirm the order of the district
                    BACON V. WOODWARD                      5


court. He would also conclude that the district court did not
abuse its discretion by denying leave to amend.



                        COUNSEL

Nathan J. Arnold (argued) and Emmanuel F. Jacobowitz,
Arnold & Jacobowitz PLLC, Redmond, Washington; Robert
B. Johnston, Law Office of R. Bruce Johnston, Seattle,
Washington; for Plaintiffs-Appellants.
J. Chad Mitchell, Summit Law Group PLLC, Kennewick,
Washington; Elizabeth R. Kennar and Selby P. Brown,
Summit Law Group PLLC, Seattle, Washington; for
Defendants-Appellees.
Andrew R.W. Hughes (argued), Spencer W. Coates, and
Brian H. Rowe, Assistant Attorneys General, Office of the
Washington Attorney General, Seattle, Washington;
Zachary J. Pekelis, Special Assistant Attorney General,
Pacifica Law Group LLP, Seattle, Washington; Intervenors-
Defendants-Appellees.
6                    BACON V. WOODWARD

OPINION

R. NELSON, Circuit Judge:

    Washington Governor Jay Inslee, by Proclamation,
required workers for state agencies to be fully vaccinated
against COVID-19. Though the Proclamation purported to
broadly accommodate those with sincerely held religious
beliefs, those accommodations were allegedly not given in
practice. Plaintiffs, City of Spokane firefighters, allege
that—as applied to them—the Proclamation violated the
Free Exercise Clause. The district court dismissed that claim
on the pleadings. We reverse.
                              I
    Proclamations 21-14 and 21-14.1 (collectively
“Proclamation”) prohibited “[a]ny Health Care Provider
from failing to be fully vaccinated against COVID-19 after
October 18, 2021.” The Proclamation also required a
“sincerely held religious belief accommodation” to be
granted in some cases.
     Spokane firefighters are required to be licensed EMTs or
paramedics, and they fall within the Proclamation’s
definition of “Health Care Provider” as a result. They were
therefore subject to the Proclamation’s vaccine requirement.
The City “created a framework to evaluate exemption and
accommodation requests.” Bacon v. Woodward, No. 2:21-
CV-0296-TOR, 

, at *1 (E.D. Wash. Nov.
8, 2021) (“Bacon I”). But after considering the individual
requests, it “determined accommodating unvaccinated
[firefighters] would impose an undue hardship,” a Title VII
standard. 

 The City “scheduled . . . hearings to allow [the
firefighters] the opportunity to be heard,” as required by
                     BACON V. WOODWARD                       7


Cleveland Board of Education v. Loudermill, 

(1985). Bacon I, 

, at *1. The hearings
were ultimately unfruitful. The City considered the
firefighters’ arguments, but once again determined that it
could not grant the requested accommodations. 

 The
firefighters have since been terminated for failing to get
vaccinated.
    Although Spokane refused to grant accommodation
requests to its own firefighters, several other fire
departments in Washington—each of which, no less than
Spokane, were subject to the Proclamation—granted
religious and medical accommodations to their firefighters.
Some of those departments neighbored Spokane and had a
mutual assistance agreement with Spokane under which
their firefighters entered Spokane “on a daily basis to
provide emergency services.”
    Private medical groups also operate within Spokane.
One such company, American Medical Response, is a
private medical transportation service that “provides
emergency transport services within Spokane, including in
conjunction with the Spokane Fire Department.” Though it
“responds to tens of thousands of calls per year in the City
of Spokane,” it never adhered to a “strict requirement that all
ambulance operators be vaccinated.”
    Plaintiffs, a group of firefighters, sued Mayor Nadine
Woodward, Spokane Fire Chief Brian Schaeffer, and the
City of Spokane (collectively, the “City Defendants”). The
firefighters asserted several claims based on the City
Defendants’ refusal to allow them to work as firefighters
8                      BACON V. WOODWARD


while unvaccinated.1 The firefighters alleged that the City
Defendants “intend[ed] to terminate [the firefighters].”
Governor Inslee and Attorney General Robert Ferguson
(collectively, the “State Defendants”) intervened to defend
the Proclamation.
    The firefighters moved for a temporary restraining order,
which the district court denied. The district court first
clarified that the firefighters “challeng[ed] only the
application of the vaccination requirement pursuant to the
Proclamation.” Bacon I, 

, at *4. And
though the court did not “decide which standard”—rational
basis review or strict scrutiny—applied, it concluded that
“the City’s vaccination requirement survives both strict
scrutiny and rational basis.” 

    But the district court’s strict-scrutiny analysis left much
to be desired. It first agreed with the parties that stemming
the spread of COVID-19 was a compelling interest. 

Once that undisputed point was established, however, the
district court’s analysis fell short. It limited its discussion of
narrow tailoring to a single sentence. To the district court,
the Proclamation’s vaccination requirement was “narrowly
tailored in that it applies to a specific job sector whose
employees come into regular contact with vulnerable
segments of the public, particularly in emergency situations,
and whose employees work in close contact with their peers
and other healthcare professionals in other facilities.” 

    That conclusory sentence did not grapple with the
firefighters’ arguments in any meaningful way. The
firefighters explained in detail, for example, that Spokane

1
 We file concurrently with this opinion a non-precedential memorandum
disposition addressing the other claims.
                     BACON V. WOODWARD                       9


had “instituted masking and distancing rules well calculated
to reduce” the spread of COVID-19 “long before vaccines
became available.” They also explained that, once they were
terminated for declining to be vaccinated, “their role [would]
have to be filled by the surrounding Fire Departments
through mutual aid.” And they explained that “every single
Fire Department surrounding the City, including those with
joint aid agreements, and the City’s private ambulance
contractors, are granting exemptions.” This argument
pointed directly to the Proclamation’s underinclusiveness—
as the firefighters explained, because of the Proclamation’s
application, “there will be more unvaccinated EMS
workers.”
    The City Defendants moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c),
joined by the State Defendants. The firefighters responded,
explaining why they considered judgment on the pleadings
to be inappropriate. As a failsafe, they requested leave to
amend.
    The district court granted the motion, dismissing the
federal claims with prejudice and the state claims without
prejudice. Bacon v. Woodward, No. 2:21-CV-0296-TOR,

, at *5 (E.D. Wash. June 30, 2022)
(“Bacon II”). In once more rejecting the Free Exercise
claim, the district court found it “unnecessary to revisit” the
issue on which it had ruled in denying the temporary
restraining order. Id. at *3. The same flawed analysis that
pervaded its previous order thus carried the day again.
   The firefighters appealed. While this appeal was
pending, Governor Inslee terminated the COVID-19 state of
emergency, including the Proclamation.
10                  BACON V. WOODWARD


                             II
    We review a judgment dismissing a case on the
pleadings de novo. Brown v. Transworld Sys., Inc., 

 (9th Cir. 2023). We “accept all material
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.” 

 (citation
omitted). We affirm only if “no relief could be granted under
any set of facts that could be proved consistent with the
allegations.” 

 (citation omitted). “We review for abuse
of discretion a district court’s decision to dismiss with
prejudice.” Okwu v. McKim, 

 (9th Cir.
2012).
                             III
    Because we are required to assure ourselves of
jurisdiction, we begin with a discussion of mootness. See
Hernandez v. Campbell, 

 (9th Cir. 2000)
(per curiam) (“Federal courts are always under an
independent obligation to examine their own jurisdiction.”
(cleaned up)).
    For us to have jurisdiction, “an actual controversy must
be extant at all stages of review, not merely at the time the
complaint is filed.” Arizonans for Official English v.
Arizona, 

 (1997) (quoting Preiser v. Newkirk,

 (1975)). “Due to the nature of the
mootness inquiry, unlike standing, we must consider factual
developments that occurred after the suit was filed.”
Fellowship of Christian Athletes v. San Jose Unified Sch.
Dist. Bd. of Educ., 

 (9th Cir. 2023) (en
banc) (citing Meland v. Weber, 

 (9th Cir.
2021)) (“Fellowship”). Our obligation to consider whether
a case is moot includes a concurrent requirement to consider
all possible arguments for why a case remains live. Both
                      BACON V. WOODWARD                       11


obligations “stem[] from the virtually unflagging obligation
of the federal courts to exercise the jurisdiction given them.”
Colo. River Water Conservation Dist. v. United States, 

 (1976).
    Although the Proclamation is rescinded, the firefighters’
claims both for retrospective relief and for prospective relief
survive. Beginning with the easier of the two issues, the
firefighters seek punitive damages for the harm that they
suffered. A request for damages keeps a case alive. See
Uzuegbunam v. Preczewski, 

 (2021)
(“nominal damages satisf[y] the redressability element of
standing”). And 

 authorizes punitive
damages against individual defendants sued in their personal
capacities “when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected
rights of others.” Ward v. City of San Jose, 

 (9th Cir. 1991) (citation omitted), as amended on denial
of reh’g (June 16, 1992); cf. City of Newport v. Fact
Concerts, Inc., 

 (1981) (holding that
punitive damages are not available under § 1983 against
municipalities).
    Here, the firefighters plausibly assert that the individual
City Defendants applied the Proclamation arbitrarily and
capriciously, and that they thereby showed callous disregard
to the firefighters’ Free Exercise rights. At this stage, that is
enough to state a claim for punitive damages. Whether the
firefighters will ultimately succeed is a separate question.
By timely appealing the dismissal of their case, the
firefighters have preserved their request for punitive
damages, and it thus remains a live issue.
12                  BACON V. WOODWARD


    We also conclude that the firefighters’ request for
prospective injunctive relief is live.          Though the
Proclamation’s rescission would ordinarily moot the
firefighters’ request for injunctive relief, see Donovan v.
Vance, 

, 1170–72 (9th Cir. 2023), it does not
do so here. “The inquiry is whether the party seeking the
injunction seeks to alter or maintain the status quo.”
Fellowship, 

. Our cases recognize that the
status quo is the “legally relevant relationship between the
parties before the controversy arose.” 

 (quoting Ariz.
Dream Act Coal. v. Brewer, 

 (9th Cir.
2014)).
    Here, the firefighters filed the Complaint before the
Proclamation required them to get vaccinated and thereby
violate their religious beliefs. Since then, some firefighters
lost their jobs because of the Proclamation. These factual
developments are relevant to our mootness analysis, as the
request for prospective relief requires a return to the pre-
termination status quo between the firefighters and Spokane.
Thus, the last legally relevant relationship between the
parties is the firefighters’ gainful employment for Spokane.
The district court could require Spokane to reinstate
terminated firefighters, and the claim for injunctive relief
thus remains live as well. See Doe v. Lawrence Livermore
Nat’l Lab., 

, 839–42 (9th Cir. 1997) (stating
that reinstatement constitutes prospective injunctive relief);
see also Fellowship, 

.
                             IV
    Since we have jurisdiction, we turn to the merits of the
firefighters’ as-applied Free Exercise challenge to Spokane
and its officials’ implementation of the Proclamation’s
religious accommodation policy. We begin from familiar
                     BACON V. WOODWARD                       13


principles.     The Free Exercise Clause provides that
“Congress shall make no law . . . prohibiting the free
exercise [of religion.]” U.S. CONST. amend. I. The Free
Exercise Clause applies equally to the federal government
and to the states. See Cantwell v. Connecticut, 

 (1940).
     We have explained that a law burdening religious
exercise is subject to “the most rigorous of scrutiny” unless
it is both neutral and generally applicable. Fellowship, 

 (quoting Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 

 (1993) (“Lukumi”)).
Strict scrutiny in the Free Exercise context “is not watered
down; it really means what it says.” Tandon v. Newsom, 

 (2021) (per curiam) (quotations omitted). Thus,
on strict-scrutiny review, “only those interests of the highest
order and those not otherwise served can over-balance
legitimate claims to the free exercise of religion.” Bowen v.
Roy, 

 (1986) (O’Connor, J., concurring).
Put differently, if strict scrutiny applies, limits on religious
practice are unconstitutional absent a “showing that [the
limitation] is essential to accomplish an overriding
governmental interest.” United States v. Lee, 

 (1982) (emphasis added). Strict scrutiny also requires
that a law inhibiting religious belief or practice go only as
far as necessary to further the government interest. States
cannot “justify an inroad on religious liberty” without first
“showing that it is the least restrictive means of achieving
some compelling state interest.” Thomas v. Rev. Bd. of Ind.
Emp. Sec. Div., 

 (1981).
    Starting with neutrality, “[a] government policy will not
qualify as neutral if it is specifically directed at religious
practice.” Kennedy v. Bremerton Sch. Dist., 

 (2022) (cleaned up). “A policy can fail this test if it
14                   BACON V. WOODWARD


discriminates on its face, or if a religious exercise is
otherwise its object.” 

 (cleaned up).
    As for general applicability, “[a] government policy will
fail the general applicability requirement if it ‘prohibits
religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a similar
way,’ or if it provides ‘a mechanism for individualized
exemptions.’” 

 (quoting Fulton v. City of Philadelphia,

, 533–34 (2021)); accord Fellowship, 

. “[W]hether two activities are comparable for
purposes of the Free Exercise Clause must be judged against
the asserted government interest that justifies the regulation
at issue.” Tandon, 

 (citing Roman Cath.
Diocese of Brooklyn v. Cuomo, 

, 17–18 (2020)
(per curiam)). Moreover, the “mere existence of a
discretionary mechanism” for exemptions can trigger strict
scrutiny, “regardless of the actual exercise.” Fellowship, 82
F.4th at 687–88.
                               A
    We need not decide whether Spokane’s implementation
of the vaccine requirement was “neutral,” because we
conclude that the firefighters have plausibly pled that it was
not “generally applicable.”
     This conclusion flows directly from the well-trodden
principles addressed above. The Complaint alleges that,
once unvaccinated firefighters were terminated, Spokane
would turn to firefighters from neighboring fire departments
to fill the gaps left by the firefighters’ departure even though
those fire departments granted religious accommodations to
their employees. In other words, Spokane implemented a
vaccine policy from which it exempted certain firefighters
based on a secular criterion—being a member of a
                     BACON V. WOODWARD                      15


neighboring department—while holding firefighters who
objected to vaccination on purely religious grounds to a
higher standard. The Free Exercise Clause prohibits
governments from “treat[ing] comparable secular groups
more favorably.” Fellowship, 

. If the secular
category of “firefighters from neighboring departments” is
exempt from Spokane’s policy, then the Free Exercise
Clause mandates that religious objectors be granted
equivalent accommodation.        Had Spokane subjected
unvaccinated out-of-department firefighters to the same
standard, its implementation of the vaccine policy might
well be generally applicable. But that is not this case. By
continuing to work with unvaccinated firefighters from
surrounding departments, Spokane undermined its interest
and destroyed any claim of general applicability.
     Resisting this straightforward conclusion, State
Defendants argue that Doe v. San Diego Unified School
District, 

 (9th Cir. 2021), requires us to find
the vaccine mandate generally applicable. We disagree.
Doe expressly held that, because the court’s decision
involved a likelihood of success analysis at the preliminary
injunction stage, its analysis was “‘persuasive but not
binding’ on future merits panels.” 

 at 1177 n.4 (internal
citation omitted). Putting that aside, Doe is materially
distinguishable. True, it involved a challenge to a student
vaccination mandate that is similar, at least superficially, to
the Proclamation. Id. at 1175. But the similarities end there.
In that case, the asserted government interest was
“protecting student ‘health and safety.’” Id. at 1178; see also
id. at 1178 n.5 (“[T]he interest the District emphasizes most
frequently in the record with respect to the student
vaccination mandate is protecting the ‘health and safety’ of
students.”). Because the school district broadly asserted its
16                    BACON V. WOODWARD


interest, we held that an exemption for medical reasons did
not undermine the district’s interests. Id. at 1178. As we
explained, allowing medical, but not religious, exemptions
aligned with that broader interest of preserving student
health.
     Here, similarly, the Proclamation’s goal was “stop[ping]
the spread of COVID-19.” If the firefighters’ Free Exercise
claim rested on the existence of medical exemptions, Doe
might pose an obstacle. But Doe in no way hinders the
conclusion that, by allowing firefighters from neighboring
counties to work in Spokane, the City undermined its
asserted interest in enforcing the Proclamation against the
firefighters. The distinction between firefighters from
within the County and those from without in no way aligns
with or promotes the stated interest of the Proclamation. The
existence of an exemption on that basis is therefore sufficient
to trigger strict scrutiny.
                                B
    Because the Proclamation is not generally applicable as
applied to the firefighters, it is subject to strict scrutiny. The
parties agree that, at the time of the Proclamation,
“[s]temming the spread of COVID-19 [wa]s unquestionably
a compelling interest,” Roman Cath. Diocese, 592 U.S. at
18.
    We focus instead on the second prong of the strict-
scrutiny test, which requires that the Proclamation be
essential to—or the least restrictive means of— furthering
the government’s interest. We conclude that the Complaint
adequately alleges that the Proclamation’s application to the
firefighters is not narrowly tailored to advance the
government’s compelling interest in stemming the spread of
COVID-19.
                     BACON V. WOODWARD                       17


    First, the Complaint alleges at least three less restrictive
ways that “[t]he Mayor, the Fire Chief, and the City could
accomplish its same compelling purpose.” They could “do[]
what all surrounding fire departments are doing – testing and
masking for COVID-19.” They could “take temperatures
and continue to social distance.” And they could consider
natural immunity. At this stage, we accept as true the
allegation that these steps would have furthered the
Proclamation’s compelling interest of stopping the spread of
COVID-19.
    Second, the Proclamation, as applied, is fatally
underinclusive. We have explained that a law “is not
narrowly tailored if it is either underinclusive or
overinclusive in scope.” IMDb.com Inc. v. Becerra, 

 (9th Cir. 2020). A law is underinclusive
when it “plac[es] strict limits on” certain activities while
allowing other activities that “create the same problem.”
Reed v. Town of Gilbert, 

 (2015). Put
differently, a law that “fail[s] to prohibit nonreligious
conduct”—or that fails to prohibit the religious conduct of
some, but not others—fails narrow tailoring if that other
permissible conduct “endangers these interests in a similar
or greater degree.” Lukumi, 

.
    Here, “[t]he underinclusiveness of the [Proclamation] is
self-evident” for the same reasons that it is not generally
applicable. First Nat’l Bank of Bos. v. Bellotti, 

 (1978). Though the mandate applies to all firefighters
employed in Spokane, it did not require firefighters from
surrounding counties to be vaccinated if their County
provided an accommodation. And those firefighters,
notwithstanding Spokane’s threat to terminate its own
nominally exempted employees, continued to work within
18                      BACON V. WOODWARD


city limits through mutual aid agreements.2 By requiring its
own employees to be vaccinated without accommodation
while continuing to work with unvaccinated firefighters
from other counties, Spokane’s application of the
Proclamation failed to fully account for the issues that would
undermine its interest. What is more, this was clear from the
start.    The Complaint alleged that, because of the
Proclamation’s application, “there will be more
unvaccinated EMS workers.”
    In sum, the Complaint includes facts showing that the
City’s application of the Proclamation was not narrowly
tailored. Thus, it plausibly alleges a violation of the Free
Exercise Clause.
                                  V
    For the reasons we have already explained, the district
court improperly dismissed the Free Exercise claim. We
reverse on that ground. But we are also troubled by the
district court’s denial of the firefighters’ request for leave to
amend their complaint.
    “Leave to amend shall be freely given when justice so
requires, and this policy is to be applied with extreme
liberality.” Desertrain v. City of Los Angeles, 

 (9th Cir. 2014) (cleaned up). Even if a complaint
is deficient, “we have repeatedly held that ‘a district court
should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading
could not be cured by the allegation of other facts.’” Lopez

2
  At oral argument, counsel stated that many firefighters who lost their
positions with Spokane later took up employment with neighboring fire
departments that did the same jobs in Spokane. Because this was not
alleged in the Complaint, it does not factor into our analysis.
                    BACON V. WOODWARD                      19


v. Smith, 

, 1130 (9th Cir. 2000) (quoting Doe
v. United States, 

 (9th Cir. 1995)) (emphasis
added).
    As explained, the firefighters alleged an as-applied Free
Exercise claim. Even putting aside the district court’s error
in considering the Complaint as filed, it should have allowed
the firefighters to amend, as other facts only strengthen the
original Complaint’s allegations. Since the Complaint was
filed, the Proclamation has been implemented. And oral
argument revealed several facts that would further
strengthen the Free Exercise claim. To name just a few,
though the original Complaint alleged that unvaccinated
firefighters from neighboring jurisdictions would step in
once the firefighters were terminated, the firefighters could
allege that what was once only a future absurdity happened
in practice. Worse, the terminated firefighters could allege
that they were hired by a neighboring jurisdiction that
responds to emergencies in Spokane. The district court
should have allowed an amendment so that, at a minimum,
both of these allegations could be added to the Complaint.
In failing to do so, the district court abused its discretion.
                             VI
   “[E]ven in a pandemic, the Constitution cannot be put
away and forgotten.” Roman Cath. Diocese, 592 U.S. at 19.
Because the firefighters plausibly allege that Spokane
applied the Proclamation in violation of the Free Exercise
Clause, we reverse the district court’s grant of judgment on
the pleadings to defendants for further proceedings
consistent with this opinion.
   REVERSED AND REMANDED.
20                      BACON V. WOODWARD


HAWKINS, Circuit Judge, dissenting:

    I respectfully dissent. In an unpublished disposition filed
simultaneously with this opinion, we reject plaintiffs’ claim
that the Proclamation facially violates the First
Amendment’s Free Exercise Clause and affirm the district
court’s dismissal of that claim. In doing so, we determine
that rational basis review applies to the facial claim.1 See
Fellowship of Christian Athletes v. San Jose Unified Sch.
Dist. Bd. of Educ., 

, 687–88 (9th Cir. 2023) (en
banc).
    I would also hold that rational basis review applies to
plaintiffs’ as-applied claim. The complaint alleges that the
City Defendants applied the Proclamation to their employees
uniformly and treated medical and religious objectors the
same. The complaint also alleges that other cities and
entities adopted different policies and the City Defendants
had pre-existing mutual aid agreements with some
neighboring fire departments. The complaint then predicts
that, as a result of those pre-existing mutual aid agreements,
some unvaccinated firefighters from neighboring
departments may operate within the City of Spokane. In my
view, these allegations are insufficient to plausibly show that
the Proclamation, as implemented by the City Defendants, is
not neutral or generally applicable. Therefore, I would
conclude that rational basis review, rather than strict
scrutiny, applies to plaintiffs’ as-applied challenge just as it
does to plaintiffs’ facial challenge. See Parents for Privacy

1
 We reached the same conclusion in another case involving a facial Free
Exercise Clause challenge to the Proclamation. Pilz v. Inslee, No. 22-
35508, 

, *2 (9th Cir. Dec. 22, 2023) (applying rational
basis review to facial challenge to Proclamation and affirming dismissal
of claim with prejudice).
                     BACON V. WOODWARD                     21


v. Barr, 

 (9th Cir. 2020). Under rational
basis review, I would affirm the order of the district court.
    Additionally, I would conclude that the district court did
not abuse its discretion by denying leave to amend.
Although we liberally construe Rule 15(a)’s requirement that
leave to amend “be freely given when justice so requires,”
Morongo Band of Mission Indians v. Rose, 

 (9th Cir. 1990), Rule 16(b)’s “good cause” standard
governs here because the district court had already issued a
pretrial scheduling order, which set a March 2, 2022 deadline
for requesting leave to amend, see Fed. R. Civ. P. 16(b)(4);
Kamal v. Eden Creamery, LLC, 

 (9th Cir.
2023). Plaintiffs failed to offer any argument in support of
their request for leave to amend or any explanation for their
failure to amend prior to the deadline set in the scheduling
order. Therefore, I would hold that the district court did not
abuse its discretion in denying plaintiffs’ belated and bare
request for leave to amend. See Johnson v. Mammoth
Recreations, Inc., 

 (9th Cir. 1992)
(“[C]arelessness is not compatible with a finding of
diligence and offers no reason for a grant of relief.”).