Last fall, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit upheld a district court preliminary injunction that barred the U.S. Air Force from requiring religious objectors to receive COVID-19 vaccinations. As I noted at the time, it appeared that the Air Force's attorneys had not fully considered how it should respond to Religious Freedom Restoration Act (RFRA) claims in this context.
The Air Force has since rescinded the vaccination requirement, and has now asked for panel rehearing or rehearing en banc for the purpose of vacating the panel decision and lower court injunction. No dice said the Sixth Circuit.
In a brief order issued today in Doster v. Kendall, the Sixth Circuit rejected the petition. It reads:
The court received a petition for panel rehearing and for rehearing en banc. The petition did not seek review of the issues that the panel's opinion decided. Rather, it sought vacatur of the opinion and of the district court's preliminary injunctions on the ground that events postdating the opinion have now mooted the appeal and the preliminary injunctions. The original panel has reviewed the petition for panel rehearing and has concluded that the district court should review this mootness question in the first instance. It has also concluded that, even if the preliminary injunctions were now moot, that fact would not provide a basis for the "extraordinary remedy of vacatur" of the panel's opinion. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994). The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied.
Judge Kethledge issued a brief statement concurring in the denial of en banc review, joined by Judges Thapar, Bush, and Murphy. It reads:
That a party chooses to comply with our decision is hardly a reason to vacate it. Here, at Congress's direction, the Air Force has rescinded the vaccine mandate at issue in this suit. The Air Force — by way of a petition for rehearing en banc — now seeks vacatur of our opinions upholding the district court's preliminary injunctions. Vacatur of our opinions is not a "normal effect" of mootness but an "extraordinary" one. U.S. Bancorp M ortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994). And the Air Force has not even tried to explain why it is entitled to vacatur when the putative mootness here arose from the government's own actions. See generally id. at 25.
All those action s, of course, occurred well after we issued our opinions here. Meanwhile, "[j]udicial precedents are presumptively correct and valuable to the legal community as a whole." Id. at 26. In this case, our opinions will stand as a caution against violating the Free Exercise rights of men and women in uniform — which, by all appearances, is what the Air Force did here.
Judge Moore issued a statement dissenting from the denial of en banc review, joined by Judges Clay and Stranch. It reads:
The issue in this case is whether the Air Force's administration of its COVID-19 vaccine mandate violated certain of its servicemembers' religious rights. After a panel of this court affirmed the district court's judgment preliminarily enjoining the Air Force from enforcing its vaccine mandate—but before the case was returned to the district court—Congress enacted the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 ("NDAA"), which ordered the Secretary of Defense to rescind the military's COVID-19 vaccine mandate. Pub. L. No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022). Twelve federal appellate judges on three courts of appeals have unanimously concluded that the NDAA and the military's implementation of that legislation mooted similar preliminary-injunction appeals. See Roth v. Austin, 62 F.4th 1114, 1119 (8th Cir. 2023); Dunn v. Austin, No. 22-15286, 2023 WL 2319316, at *1 (9th Cir. Feb. 27, 2023) (order); Short v. Berger, No. 22-15755, 2023 WL 2258384, at *1 (9th Cir. Feb. 24, 2023) (order); Navy Seal 1 v. Austin, No. 22-5114, 2023 WL 2482927, at *1 (D.C. Cir. Mar. 10, 2023) (per curiam). My review of these decisions and the record in this case leads me to the same conclusion. I would therefore grant the petition for rehearing en banc, which would have the normal effect of vacating the panel's opinion, and hold that Congress's action mooted the pending appeals of the district court's preliminary-injunction orders.
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