Other federal courts of appeals have had little difficulty concluding that the end of the military’s COVID-19 vaccine mandate – as legislated in the James M. Inhofe National Defense Authorization Act (NDAA) in 2022 –renders moot all pending litigation concerning injunctive relief from the rule. Just yesterday, the Tenth Circuit in Robert v. Austin, No. 22-1032 (10th Cir. July 6, 2023), dismissed an appeal concerning the mandate.
So leave it to the Fifth Circuit to engage in the extra handwringing about closing out (for injunctive relief) another case attacking the vaccine mandate in U.S. Navy SEALs 1-26 v. Biden, No. 22-10077 (5th Cir. July 6, 2023). The case generates three opinions that would reach three separate outcomes.
“This appeal involves the Navy’s near-categorical refusal to accommodate servicemembers’ inability to receive a vaccine due to their religious convictions. The district court twice enjoined the Navy’s policies as likely illegal under RFRA [the federal Religious Freedom Restoration Act].” See U.S. Navy SEALs 1- 26 v. Biden, 578 F. Supp. 3d 822 (N.D. Tex. 2022), stay denied, 27 F.4th 336 (5th Cir. 2022), stay granted sub nom Austin v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301 (2022).
“After entry of those injunctions, however, Congress ordered the military branches to rescind their mandates [in the NDAA]. The Navy complied with that directive and then went above and beyond it—rescinding all the challenged policies and formally announcing that COVID-19 vaccines would not be imposed on any servicemember.”
The panel majority holds that the current appeal is now moot. “Obeying a newly enacted federal statute, the Navy rescinded its COVID-19 mandate. Then it revoked each of the implementing policies addressed by the preliminary injunction. Then it promulgated new policies providing that no vaccine mandate will be imposed on Navy servicemembers. As other circuits have held, such actions moot a dispute over the lawfulness of military vaccine mandates.” The panel majority further notes that the preliminary injunctions no longer provide effectual relief in the shadow of the NDAA. “[T]he Navy has given Plaintiffs ‘the precise relief’ provided by the preliminary injunctions, leaving us ‘unable to provide relief beyond what [the Navy] already gave.’”
The panel majority also holds that neither of the mootness exceptions – voluntary cessation and capable of repetition yet evading review – apply to the appeal. “It is true, as the Navy concedes, that it could implement a new vaccine mandate in the future. That does not change the mootness calculus, though. It is black-letter law that the government’s mere ‘ability to reimplement the statute or regulation at issue is insufficient to prove the voluntary-cessation exception.’”
The panel does note though, with respect to “capable of repetition,” that “[t]he mootness of this interlocutory appeal does not prevent the district court from ruling on any of Plaintiffs’ claims that remain justiciable.” Indeed, all three judges on the panel concur with the disposition that “Plaintiffs’ case remains before the district court, which will decide in the first instance whether any of Plaintiffs’ claims are justiciable. We express no view on that question.”
Concurring in substantial part, Judge Graves would have gone further and vacated the Fifth Circuit’s prior panel opinion addressing the now-moot and -vacated preliminary injunction. “[V]acatur of a stay panel opinion may be warranted in ‘a rare case where a party could identify any ruling within a stay-panel opinion that would have precedential effect beyond the preliminary decision on the stay’ . . . . This stay panel opinion presents such a rare case. It is a published decision, so its analysis . . . has precedential effect beyond its preliminary decision on the stay. While we would not have been bound by that analysis in reaching a final decision on the merits, the appeal was mooted before we had that opportunity. Since the Navy can no longer seek review of the published stay panel opinion, the public interest would be served by its vacatur.”
Finally, Judge Ho in dissent would not find the case moot at all, on the ground that the Navy never confessed error and withdrew the policy opportunistically only on the eve of oral argument before the Fifth Circuit. Despite the intervening NDAA, “[t]he Secretary of Defense maintained his fervent opposition to Congress’s repeal of his mandate. He also insisted that, notwithstanding Congress, the entire Armed Forces, including the Navy, could continue to discriminate based on vaccination status in deployment and other operational decisions . . . . [T]he Navy by all accounts stands by its position—indeed, it asks us to vacate the preliminary injunction—based on a new policy it can rescind unilaterally at any time, without legislation or even the need for notice and comment.”
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