David Donovan v. Brian Vance, 70 F.4th 1167

Plaintiffs: a putative class of federal contractor employees and Department of Energy federal employees who faced COVID-19 vaccine mandates (Exec. Orders 14042 and 14043) that allowed medical and religious exemptions.
Plaintiffs sought injunctive and declaratory relief after the district court denied a TRO and a preliminary injunction and later dismissed their Second Amended Complaint with prejudice for failure to state a claim.
While the appeal was pending, President Biden revoked EO 14042 and EO 14043 by Exec. Order 14099 (effective May 12, 2023) and related Task Force guidance was rescinded.
The government argued it had not waived sovereign immunity for monetary damages under RFRA; plaintiffs sought damages under RFRA.
The Ninth Circuit held the non-RFRA claims moot because the EOs and implementation guidance were revoked and dismissed RFRA damages claims for lack of jurisdiction under sovereign immunity.
The panel affirmed in part, dismissed in part, and remanded with instructions to vacate the portions of the district-court orders addressing the non-RFRA claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mootness of non-RFRA claims after revocation of EOs	Donovan: Revocation does not eliminate a live controversy; exceptions apply	Vance: Revocation of EOs and Task Force guidance removes the challenged conduct, so claims are moot	Moot — appeal dismissed as to Procurement Act, Procurement Policy Act, APA, major-questions, and structural claims because the EOs and implementing guidance were revoked
Damages under RFRA (sovereign immunity)	Donovan: RFRA entitles plaintiffs to money damages for governmental RFRA violations	Vance: Government has not waived sovereign immunity for monetary RFRA relief	RFRA damages claims dismissed for lack of jurisdiction — RFRA does not waive sovereign immunity for damages
Vacatur of district-court orders (Munsingwear)	Donovan: Seek relief from lower-court rulings despite mootness	Vance: Revocation was happenstance; vacatur appropriate	Court orders partially vacated under Munsingwear because mootness arose by happenstance and vacatur does not harm public interest
Mootness exceptions (capable of repetition/voluntary cessation)	Donovan: Exceptions save the appeal	Vance: Exceptions do not apply here; Mayes controls and prior guidance revoked	Exceptions rejected — not applicable given Mayes and the revocation context

NASD Disp. Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065 (9th Cir. 2007) (appellate mootness and vacatur principles)
Pub. Util. Comm’n of State of Cal. v. FERC, 100 F.3d 1451 (9th Cir. 1996) (lack of jurisdiction when no effective appellate relief exists)
Ctr. For Biological Diversity v. Lohn, 511 F.3d 960 (9th Cir. 2007) (when challenged activity has "evaporated," no live controversy)
Mayes v. Biden, 67 F.4th 921 (9th Cir. 2023) (resolving similar federal-contractor vaccine-mandate claims)
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) (vacatur of lower-court judgments when a case becomes moot on appeal)
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (equitable considerations for vacatur when mootness arises by happenstance)
City & Cnty. of San Francisco v. Garland, 42 F.4th 1078 (9th Cir. 2022) (partial vacatur appropriate)
Camreta v. Greene, 563 U.S. 692 (2011) (vacatur of parts of opinions when mootness intervenes)
Daniel v. Nat’l Park Serv., 891 F.3d 762 (9th Cir. 2018) (sovereign immunity is a threshold jurisdictional issue)
Deschutes Haw., Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012) (de novo review of sovereign-immunity jurisdictional questions)
United States v. Mitchell, 463 U.S. 206 (1983) (United States cannot be sued without its consent)