72 F.4th 666
5th Cir.2023Background
- In August 2021 Secretary of Defense Lloyd Austin (and then Secretary of the Navy Carlos Del Toro) mandated COVID-19 vaccination for servicemembers and implemented policies that threatened separation, loss of benefits, repayment of training costs, and restrictions on reenlistment, promotion, assignment, and deployment for unvaccinated personnel.
- Thirty-five members of Naval Special Warfare sought religious exemptions; the Navy denied all religious exemption requests while granting medical exemptions, and plaintiffs sued under the First Amendment and RFRA seeking a preliminary injunction against adverse actions.
- The district court granted a preliminary injunction enjoining specific Navy policies and prohibiting adverse actions based on plaintiffs’ religious accommodation requests; a Fifth Circuit motions panel denied a stay, and the Supreme Court later granted a partial stay on deployment/assignment considerations.
- Congress enacted the NDAA directing rescission of the DoD COVID-19 vaccine mandate; Secretaries Austin and Del Toro rescinded the mandates and issued additional Navy and DoD policies expressly forbidding commanders from mandating the COVID-19 vaccine or considering vaccination status for deployment/assignment.
- The Navy’s rescission and subsequent binding policies removed the challenged distinctions between vaccinated and unvaccinated servicemembers, prompting the Fifth Circuit to consider whether the interlocutory appeal was moot.
- The Fifth Circuit held the appeal moot, rejected plaintiffs’ arguments that exceptions to mootness applied (voluntary cessation and capable-of-repetition), declined to vacate the prior stay-panel opinion, and remanded for further district-court proceedings on any remaining justiciable claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot after rescission of the vaccine mandate and implementing policies | Rescission left open threats (deployment/assignments) and the Navy could return to discriminatory practices; relief still necessary | Rescission and new policies removed all challenged policies and restored plaintiffs to equal footing, so injunctions provide no additional relief | Moot: rescission and binding policies removed the live controversy; appeal dismissed |
| Whether voluntary cessation exception saves the appeal from mootness | Navy could reimpose a mandate or resume differential treatment; its actions are litigation-driven and not credible assurances | Government actions and formal policy changes presumed made in good faith; no evidence of bad-faith litigation posturing | Voluntary-cessation exception not applied; presumption of governmental good faith sustained the mootness conclusion |
| Whether the controversy is capable of repetition yet evading review | The mandate’s short duration and likelihood plaintiffs would face it again justify exception | Issues can be litigated in district court to final judgment if they recur; exception not needed here | Court did not apply the exception and noted district court can address remaining justiciable claims |
| Whether the stay-panel opinion denying a stay should be vacated | Plaintiffs implicitly support leaving precedent intact | Navy asked for vacatur of the stay-panel opinion | Court declined to vacate the stay-panel opinion (concurrence dissented on this point) |
Key Cases Cited
- Doster v. Kendall, 54 F.4th 398 (6th Cir. 2022) (upholding preliminary injunction on RFRA grounds in military vaccine context)
- U.S. Navy SEALs 1-26 v. Biden, 27 F.4th 336 (5th Cir. 2022) (motions-panel opinion denying stay of district court injunction)
- Austin v. U.S. Navy SEALs 1-26, 142 S. Ct. 1301 (2022) (Supreme Court partial stay of injunction as to deployment/assignment decisions)
- Roth v. Austin, 62 F.4th 1114 (8th Cir. 2023) (holding NDAA-directed rescission of mandate mooted similar challenge)
- Freedom From Religion Found. v. Abbott, 58 F.4th 824 (5th Cir. 2023) (Article III mootness principles; de novo review of mootness)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (2000) (voluntary cessation exception requires it be "absolutely clear" challenged conduct will not recur)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (defendant cannot automatically moot a case by ceasing unlawful conduct once sued)
- Spell v. Edwards, 962 F.3d 175 (5th Cir. 2020) (a case is moot when court cannot grant any effectual relief to prevailing party)