U.S. Navy SEALs 1-26 v. Joseph Biden, Jr. ( 2023 )

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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
_____________ FILED
July 6, 2023
No. 22-10077 Lyle W. Cayce
consolidated with Clerk
No. 22-10534
_____________
U.S. Navy SEALs 1-26; U.S. Navy Special Warfare
Combatant Craft Crewmen 1-5; U.S. Navy Explosive
Ordnance Disposal Technician 1; U.S. Navy Divers 1-3,
Plaintiffs—Appellees,
versus
Joseph R. Biden, Jr., in his official capacity as President of the United
States of America; Lloyd Austin, Secretary, U.S. Department of Defense,
individually and in his official capacity as United States Secretary of Defense;
United States Department of Defense; Carlos Del
Toro, individually and in his official capacity as United States Secretary of the
Navy,
Defendants—Appellants.
______________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-1236
______________________________
Before Graves, Ho, and Duncan, Circuit Judges.
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Stuart Kyle Duncan, Circuit Judge:
Our nation’s guarantees of religious freedom protect those serving in
the military. See U.S. Const. amend. I; Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb et seq.; see also,
e.g., Singh v. Berger, 56 F.4th 88, 92 (D.C. Cir. 2022) (observing that “the
Political Branches have repeatedly required the military to carefully balance
its need for disciplined uniformity with the religious needs of service
members”). For good reason, then, courts have halted the military’s recent
attempts to force servicemembers, on pain of draconian penalties, to receive
COVID-19 vaccines against their sincere religious objections. See Doster v.
Kendall, 54 F.4th 398, 419 (6th Cir. 2022) (upholding preliminary injunction
because plaintiffs were likely to “prove that the Air Force violated RFRA
when it denied their requests for religious exemptions”); U.S. Navy Seals
1-26 v. Biden, 27 F.4th 336, 350 (5th Cir. 2022) (per curiam) (denying the
Navy’s requested stay because “at a minimum, [Plaintiffs’] RFRA claims
are meritorious”), preliminary injunction partially stayed sub nom. Austin v.
U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022) (mem.).
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. After entry of those injunctions, however,
Congress ordered the military branches to rescind their mandates. 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 Navy’s actions moot this appeal. So, despite the overwhelming
importance of the issues presented, we lack jurisdiction to address them. In
reaching that conclusion, we join other circuits that have dismissed similar
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challenges as moot. See, e.g., Roth v. Austin, 62 F.4th 1114 (8th Cir. 2023);
Navy Seal 1 v. Austin, No. 22-5114, 2023 WL 2482927 (D.C. Cir. Mar. 10,
2023) (unpublished); Dunn v. Austin, No. 22-15286, 2023 WL 2319316 (9th
Cir. Feb. 27, 2023) (unpublished).
We therefore DISMISS the appeal and REMAND for further
proceedings consistent with this opinion.
I.
A.
On August 24, 2021, Secretary of Defense Lloyd Austin ordered all
members of the Armed Forces to be vaccinated against COVID-19.
Secretary of the Navy Carlos Del Toro followed suit soon after, mandating
vaccination for all Navy servicemembers.
The Navy mandate was fleshed out by three policies relevant here.
First, unvaccinated servicemembers, absent an exemption, would be
separated from service. As a result, they would also risk losing veteran’s
benefits and having to repay the cost of their training. See NAVADMIN
225/21 (Oct. 13, 2021). Second, servicemembers seeking an exemption could
not re-enlist, execute orders, be promoted, or deploy. See NAVADMIN
256/21 (Nov. 15, 2021). Third, even servicemembers granted an exemption
remained ineligible to deploy—but only if the exemption was granted on
religious grounds. See Manual of the Navy Medical Department
(“MANMED”) 15-105(3)(n)(9).
Plaintiffs are thirty-five members of Naval Special Warfare Command
units. 1 Each sought an exemption due to a sincere religious objection to the
_____________________
1
They include Navy SEALs, Navy Divers, Navy Special Warfare Combatant
Craft Crewmen, and Navy Explosive Ordnance Disposal Technicians.
3
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Navy’s authorized vaccines. None was exempted. In fact, the Navy did not
grant a single religious exemption to anyone until this litigation was well
underway, despite granting several hundred medical exemptions. U.S. Navy
Seals 1-26, 27 F.4th at 341–42.
Plaintiffs sued Secretary Austin, Secretary Del Toro, and the
Department of Defense (collectively, “the Navy”), alleging that the mandate
violated the First Amendment and RFRA. They also sought a preliminary
injunction to block enforcement of the policies described above. Specifically,
they asked the court to enjoin “any adverse action” based on their
vaccination status, such as job loss, ineligibility to deploy, and restrictions on
promotion and training opportunities.
The district court granted a preliminary injunction that did two things.
It enjoined the Navy “from applying MANMED § 15-105(3)(n)(9);
NAVADMIN 225/21; Trident Order #12[2]; and NAVADMIN 256/21 to
Plaintiffs.” Further, it prohibited the Navy “from taking any adverse action
against Plaintiffs on the basis of Plaintiffs’ requests for religious
accommodation.” The gravamen of the court’s reasoning was that the
Navy’s review process was mere “theater” with each request ending in a
“rubber stamp[ed]” denial of a religious exemption.
The Navy appealed and sought a stay of the injunction pending
appeal. A motions panel denied the stay, U.S. Navy Seals 1-26, 27 F.4th 336,
but a divided Supreme Court granted it in part, staying the injunction
“insofar as it precludes the Navy from considering respondents’ vaccination
status in making deployment, assignment, and other operational decisions.”
Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301 (2022) (mem.).
_____________________
2
Trident Order #12 was rescinded prior to this appeal and is no longer at issue.
4
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Subsequently, the district court granted Plaintiffs’ motion to certify a
class consisting of “all Navy servicemembers subject to the vaccine mandate
who have submitted religious accommodation requests.” It then granted the
class a preliminary injunction prohibiting enforcement of the same policies
named in its first injunction. The Navy again appealed, challenging both the
injunction and the class certification. We consolidated the two appeals.
B.
Before we heard oral argument, President Biden signed into law a
statute directing Secretary Austin to rescind the vaccine mandate. See James
M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L.
No. 117-263, § 525, 136 Stat. 2395, 2571–72 (2022) (“NDAA”). As relevant
here, the NDAA provides that
[n]ot later than 30 days after the date of the enactment of this
Act, the Secretary of Defense shall rescind the mandate that
members of the Armed Forces be vaccinated against COVID-
19 pursuant to the memorandum dated August 24, 2021,
regarding “Mandatory Coronavirus Disease 2019 Vaccination
of Department of Defense Service Members.”
Ibid. The NDAA gave no further instructions.
Secretary Austin duly rescinded the mandate on January 10, 2023. See
Memorandum, Secretary of Defense, Rescission of August 24, 2021, and
November 30, 2021, Coronavirus Disease 2019 Vaccination Requirements
for Members of the Armed Forces (Jan. 10, 2023). He ordered the military to
stop separating servicemembers who had sought an exemption and to
“remove any adverse actions solely associated with denials of such
requests.” Ibid. Secretary Del Toro then rescinded the Navy mandate,
“suspend[ing] any new adverse administrative actions associated with
refusing the COVID-19 vaccine.” NAVADMIN 005/23 (Jan. 11, 2023).
Both Secretary Austin and Secretary Del Toro clarified, however, that
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commanders remained free to consider vaccination status in making
deployment, assignment, and operational decisions.
Following oral argument, the Navy promulgated additional policies
that eliminated any remaining distinctions between vaccinated and
unvaccinated personnel. Notably, the Navy issued a policy stating that
“[u]nder no circumstances shall a Commander mandate that any Navy
Service member receive the COVID-19 vaccination.” NAVADMIN
038/23 (Feb. 15, 2023). It further provided that “COVID-19 vaccination
status shall not be a consideration in assessing individual service member
suitability for deployment or other operational missions.” Ibid. Later, the
Department of Defense also barred the military branches, including the
Navy, from considering vaccination status for deployment and assignment-
related decisions so long as the COVID-19 vaccine remained optional. 3
II.
Whether an appeal is moot is a jurisdictional issue that we review de
novo. See Freedom From Religion Found. v. Abbott (FFRF), 58 F.4th 824, 831
(5th Cir. 2023); Lauren C. ex rel. Tracey K. v. Lewisville Indep. Sch. Dist., 904
F.3d 363, 371 (5th Cir. 2018).
III.
A.
The Navy argues that events subsequent to the preliminary injunction
have mooted the appeal. We agree.
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3
See Deputy Secretary of Defense, Guidance for Implementing Rescission of
August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination
Requirements for Members of the Armed Forces (Feb. 24, 2023) (“Feb. 24 DoD
Rescission Guidance”).
6
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If a dispute ceases mid-litigation, so does our jurisdiction. See U.S.
Const. art. III, § 2 (limiting federal jurisdiction to “Cases” and
“Controversies”); see also FFRF, 58 F.4th at 831–32 (under Article III, “[w]e
are . . . permitted ‘to adjudicate only live disputes’” (quoting Hinkley v.
Envoy Air, Inc., 968 F.3d 544, 548 (5th Cir. 2020))). One way that happens is
when a challenged policy is repealed. See, e.g., Houston Chron. Pub. Co. v.
League City, 488 F.3d 613, 619 (5th Cir. 2007) (“It goes without saying that
disputes concerning repealed legislation are generally moot.”). “In that case,
mootness is the default.” FFRF, 58 F.4th at 832 (collecting authorities).
That default rule of mootness applies here. 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. 4
Another sure sign that this appeal is moot is that the preliminary
injunctions no longer provide Plaintiffs “any effectual relief.” See Spell v.
Edwards, 962 F.3d 175, 179 (5th Cir. 2020) (“A matter is moot ‘when it is
impossible for a court to grant any effectual relief whatever to the prevailing
party.’” (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298,
307 (2012))). The district court enjoined specific vaccine policies and
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4
See Roth, 62 F.4th at 1119 (“The rescission of the COVID-19 vaccination
mandate, as directed by the [NDAA], provides the Airmen all of their requested
preliminary injunctive relief and renders this appeal moot.”); Navy Seal 1, 2023 WL
2482927, at *1 (sua sponte dismissing as moot appeals from denials of preliminary
injunctions “[i]n light of the January 10, 2023 Memorandum issued by the Secretary of
Defense rescinding the military’s COVID-19 vaccination mandate for all service
members, and the subsequent directives formally implementing the Secretary of Defense’s
rescission of the COVID-19 vaccination requirement”); Dunn, 2023 WL 2319316, at *1
(same).
7
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prohibited “any adverse action” against noncomplying Plaintiffs. 5 But
Plaintiffs, both individually and as a class, have now received everything
those injunctions required, mooting the appeal. See, e.g., Amawi v. Paxton,
956 F.3d 816, 821 (5th Cir. 2020) (finding preliminary injunction moot where
revisions to a challenged law “provided the plaintiffs the very relief their
lawsuit sought”); Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir. 1998)
(“[A] request for injunctive relief generally becomes moot upon the
happening of the event sought to be enjoined.”).
Start with the vaccine policies themselves. They forced Plaintiffs to be
vaccinated or face severe penalties. No more. Secretary Austin’s January 10
rescission order rendered all military “policies, directives, and guidance
implementing those vaccination mandates as no longer in effect.” Feb. 24 DoD
Rescission Guidance (emphasis added). In fact, the military branches were
required to “formally rescind” those nullified policies. Ibid. There is no need
to enjoin policies that no longer exist. See Spell, 962 F.3d at 179 (“Once the
[challenged] law is off the books, there is nothing injuring the plaintiff and,
consequently, nothing for the court to do.”).
Plaintiffs also no longer face any threat of “adverse action” from
refusing a COVID-19 vaccine. Navy policies now formally prohibit “any
new adverse administrative actions” against unvaccinated servicemembers
and require removing past adverse actions. NAVADMIN 005/23 (January
11, 2023); Memorandum, Secretary of the Navy, Department of the Navy
Actions to Implement Coronavirus Disease 2019 Rescission (Feb. 24, 2023).
_____________________
5
The district court’s class-wide preliminary injunction was narrower, only
enjoining the four vaccination policies. So, our discussion of the individual Plaintiffs’
preliminary injunction necessarily encompasses the class-wide injunction.
8
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Critically, the Navy has also ruled out using vaccination status to deny
deployment eligibility, training opportunities, and assignments. This was the
central threat that, Plaintiffs argued, hung over their heads even post-
rescission. The Navy has now abjured it. No fewer than three binding policies
now forbid considering vaccination status for such decisions. 6 Because the
Navy has definitively restored Plaintiffs to equal footing with their vaccinated
counterparts through repeated formal policy changes, enjoining “adverse
action” offers Plaintiffs no effectual relief.
In sum, the Navy has given Plaintiffs “the precise relief” provided by
the preliminary injunctions, leaving us “unable to provide relief beyond what
[the Navy] already gave.” Franciscan All., Inc. v. Becerra, 47 F.4th 368, 375
(5th Cir. 2022). Thus, absent an exception to mootness, we lack jurisdiction
to reach the merits. It is to those exceptions that we now turn.
B.
Plaintiffs argue the appeal remains live under two exceptions to
mootness: voluntary cessation and capable of repetition yet evading review.
We consider each in turn.
1.
“It is well settled that a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine
_____________________
6
See NAVADMIN 038/23 (Feb. 15, 2023) (“COVID-19 vaccination status shall
not be a consideration in assessing individual service member suitability for deployment or
other operational missions.”); Feb. 24 DoD Rescission Guidance (“DoD Component
heads and commanders will not . . . consider a Service member’s COVID-19 immunization
status in making deployment, assignment, and other operational decisions, absent
establishment of a new immunization requirement . . . .”); NAVADMIN 065/23 (March
7, 2023) (“COVID-19 vaccination status shall not be a consideration in assessing individual
Service member suitability for deployment or other operational decisions.”).
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the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289 (1982). That is because “[a] defendant, without court compulsion,
could legally return to its former ways.” K.P. v. LeBlanc, 627 F.3d 115, 121
(5th Cir. 2010). The doctrine of voluntary cessation evaluates the risk that a
defendant is engaging in “litigation posturing” to avoid judicial review. See
Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018); Aladdin’s Castle, 455 U.S.
at 289 n.10. Accordingly, it must be “absolutely clear” that the defendant’s
challenged conduct “could not reasonably be expected to recur” to divest us
of jurisdiction. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate
Exp. Ass’n, 393 U.S. 199, 203 (1968)).
The voluntary cessation analysis is somewhat different with respect to
a government defendant. “[G]overnmental entities bear a ‘lighter
burden’ . . . in proving that the challenged conduct will not recur once the
suit is dismissed as moot.’” FFRF, 58 F.4th at 833 (quoting Stauffer v.
Gearhart, 741 F.3d 574, 582 (5th Cir. 2014)) (some internal quotation marks
omitted); see also, e.g., Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009)
(same), aff’d, 563 U.S. 277 (2011). “That is so because we presume that state
actors, as public representatives, act in good faith.” FFRF, 58 F.4th at 833
(citing Amawi, 956 F.3d at 821); see also, e.g., Sossamon, 560 F.3d at 325(explaining that “government actors in their sovereign capacity and in the
exercise of their official duties are accorded a presumption of good faith
because they are public servants, not self-interested private parties”).
Accordingly, “[w]ithout evidence to the contrary, we assume that formally
announced changes to official government policy are not mere litigation
posturing.” Yarls, 905 F.3d at 911 (quoting Sossamon, 560 F.3d at 325).
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Plaintiffs argue that voluntary cessation applies here because the
NDAA left the Navy free to implement a new mandate or at least resume its
differential treatment of unvaccinated servicemembers. We disagree. 7
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.” FFRF, 58 F.4th at 833; see also Roth, 62 F.4th at 1119–20 (Stras,
J., concurring in the judgment) (“Voluntary cessation does not necessarily
moot a case, but statutory changes generally do, even if the power to reenact
the challenged provision remains.”) (citations omitted; cleaned up); Nat’l
Black Police Ass’n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)
(“[T]he mere power to reenact a challenged law is not a sufficient basis on
which a court can conclude that a reasonable expectation of recurrence
exists.”).
Nor do we think that the Navy’s conduct “raises suspicions of
‘litigation posturing.’” Yarls, 905 F.3d at 910. Litigation posturing typically
involves some sign of bad faith or insincerity. See, e.g., Texas v. Biden, 20
F.4th 928, 962–64 (5th Cir. 2021), rev’d on other grounds, 142 S. Ct. 2528
(2022) (finding voluntary cessation where government “repeatedly exhibited
gamesmanship in its decisionmaking” by hiding evidence and engaging in
_____________________
7 The Navy argues that voluntary cessation does not apply merely because it acted
involuntarily—that is, the Navy opposed the NDAA and rescinded the mandate only at
Congress’s command. We need not address this argument. Whether or not the Navy
rescinded the mandate involuntarily, it took other actions to remedy Plaintiffs’ asserted
harms that the NDAA did not expressly require: namely, treating unvaccinated and
vaccinated servicemembers alike for purposes of deployment, assignment, and operational
decisions. We express no opinion on whether the appeal would be moot if the Navy had
only rescinded the mandate but done nothing more.
11
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“eleventh-hour” policy changes); Opulent Life Church v. City of Holly
Springs, 697 F.3d 279, 284 (5th Cir. 2012) (amending challenged law “the
night before oral argument” did not moot case); Sossamon, 560 F.3d at 325(requiring “evidence that the voluntary cessation is a sham for continuing
possibly unlawful conduct”). We see no signs of such gamesmanship here.
The Navy rapidly complied with the NDAA. It then promulgated
multiple binding policies going beyond what Congress required to eradicate
the effects of the mandate. It has even expressly assured that “[u]nder no
circumstances shall a Commander mandate that any Navy Service member
receive the COVID-19 vaccination” and that “COVID-19 vaccination
status shall not be a consideration in assessing individual service member
suitability for deployment or other operational missions.” NAVADMIN
038/23 (Feb. 15, 2023). Those official assurances assuage any concern that
the Navy is trying to duck judicial scrutiny. See Miraglia v. Bd. of Supervisors
of La. State Museum, 901 F.3d 565, 572 (5th Cir. 2018) (voluntary cessation
inapplicable “when a government entity assures a court of continued
compliance, and the court has no reason to doubt the assurance”). 8
In sum, we cannot assume, without evidence to the contrary, that the
upper echelons of the Navy, including the Secretary of the Navy, issued the
post-rescission policies with an eye toward resuming the challenged conduct
as soon as the courts were done. Accordingly, we adhere to the presumption
that “formally announced changes to official governmental policy are not
mere litigation posturing.” Sossamon, 560 F.3d at 325. The voluntary
cessation exception does not apply here.
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8
We therefore respectfully disagree with our dissenting colleague that the Navy is
not entitled to the normal presumption, well-settled in our precedent, that a government
entity acts in good faith when it ceases challenged conduct. Post, at 2.
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2.
Alternatively, Plaintiffs argue that this appeal falls into the exception
for controversies that are capable of repetition yet evade judicial review. This
exception applies where “(1) the challenged action [is] in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there [is] a
reasonable expectation that the same complaining party [will] be subject to
the same action again.” Empower Texans, Inc. v. Geren, 977 F.3d 367, 370 (5th
Cir. 2020) (alterations in original) (quoting Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 170 (2016)). It applies “only in exceptional
situations.” Ibid. (quoting Kingdomware, 579 U.S. at 170).
We need not consider this exception, however, because the issues
Plaintiffs raise can still be litigated in the district court and appealed after a
final judgment, assuming they remain justiciable. The capable-of-repetition
exception “is inapplicable in those situations in which the issues underlying
the moot appeal are not moot in the case remaining before the district court.”
Marilyn T., Inc. v. Evans, 803 F.2d 1383, 1385 (5th Cir. 1986), abrogated on
other grounds by Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991); see
also Indep. Party of Richmond Cnty. v. Graham, 413 F.3d 252, 256 (2d Cir.
2005). The mootness of this interlocutory appeal does not prevent the
district court from ruling on any of Plaintiffs’ claims that remain justiciable.
See Marilyn T., 803 F.2d at 1385.
C.
Finally, we decline the Navy’s invitation to vacate our motion panel’s
published opinion denying a stay pending appeal. U.S. Navy Seals 1-26, 27
F.4th 336. “Judicial precedents are presumptively correct and valuable to the
legal community as a whole. They are not merely the property of private
litigants and should stand unless a court concludes that the public interest
would be served by a vacatur.” ODonnell v. Salgado, 913 F.3d 479, 481 (5th
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Cir. 2019) (per curiam) (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 29 (1994)). The Navy has not argued, much less shown,
that the public interest would be served by vacatur. 9
***
In sum, this interlocutory appeal is moot because the Navy’s vaccine
policies challenged here have been rescinded and because no exception to
mootness applies. That does not end the litigation, however. See Univ. of Tex.
v. Camenisch, 451 U.S. 390, 394 (1981). 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.
IV.
We DISMISS the appeal as moot and REMAND for further
proceedings consistent with this opinion. 10
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9
The partially concurring opinion would vacate the stay panel’s opinion under
United States v. Munsingwear, Inc., 340 U.S. 36 (1950). But “vacatur of a prior stay-panel
opinion once a case becomes moot on appeal is inappropriate” under Munsingwear
“because that stay-panel opinion cannot spawn binding legal consequences regarding the
merits of the case.” Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm.,
950 F.3d 790, 795 (11th Cir. 2020) (emphasis removed); see also Hand v. Desantis, 946 F.3d
1272, 1275 n.5 (11th Cir. 2020); F.T.C. v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Cir.
1977); Serv. Emps. Int’l Union Loc. 1 v. Husted, 531 F. App’x 755, 756 (6th Cir. 2013).
10
There is no need to vacate the preliminary injunctions because they no longer
have any practical effect on the parties. “[I]f the case remains alive in the district court, it
is sufficient to dismiss the appeal without directing that the injunction order be vacated.”
13C Alan Wright, Arthur Miller, & Edward H. Cooper, Fed. Prac.
and Proc. § 3533.10.3 (3d ed. April 2023). Indeed, dismissal without vacatur is the
“usual practice” for interlocutory appeals, and we have no cause to deviate. See Fleming v.
Gutierrez, 785 F.3d 442, 449 (10th Cir. 2015); Democratic Exec. Comm. of Fla., 950 F.3d at
795; Hous. Works, Inc. v. City of New York, 203 F.3d 176, 178 (2d Cir. 2000); McLane v.
Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 524 n.6 (1st Cir. 1993); see also Marilyn T., 803
F.2d at 1385.
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James E. Graves, Jr., Circuit Judge, concurring in part and dissenting
in part:
I concur in parts I.B, II, III.A, III.B., and IV of the majority opinion.
Because I would vacate the stay panel opinion under United States v.
Munsingwear, Inc., I respectfully dissent from part III.C of the opinion. 340
U.S. 36, 41 (1950) (“[vacatur] is commonly utilized in precisely this situation
to prevent a judgment, unreviewable because of mootness, from spawning
any legal consequences.”). In Democratic Exec. Comm. of Fla. v. Nat’l
Republican Senatorial Comm., the Eleventh Circuit declined to vacate a stay-
panel opinion because “the necessarily tentative and preliminary nature of a
stay-panel opinion precludes the opinion from having an effect outside that
case.” 950 F.3d 790, 795 (11th Cir. 2020). However, it elaborated that
vacatur 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.” Id. at n.2.
This stay panel opinion presents such a rare case. It is a published decision,
so its analysis and application of Mindes v. Seaman, 453 F.2d 197 (5th Cir.
1971) 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.
Munsingwear, 340 U.S. at 41; see also United States v. Schaffer, 240 F.3d 35,
38 (D.C. Cir. 2001) (“When a case becomes moot on appeal, whether it be
during initial review or in connection with consideration of a petition for
rehearing or rehearing en banc, this court generally vacates the District
Court’s judgment, vacates any outstanding panel decisions, and remands to
the District Court with direction to dismiss.”).
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Case: 22-10077 Document: 00516812016 Page: 16 Date Filed: 07/06/2023
No. 22-10077
c/w No. 22-10534
James C. Ho, Circuit Judge, dissenting:
History will record that, in this battle over the Navy’s COVID-19
vaccination mandate, the Navy SEALs won multiple victories, while the
Navy suffered repeated losses. First, the SEALs vindicated their religious
liberty claims by securing a preliminary injunction. See U.S. Navy SEALs 1-
26 v. Biden, 578 F. Supp. 3d 822 (N.D. Tex. 2022). Next, the Navy asked
our court for a stay, but lost unanimously. See U.S. Navy SEALs 1-26 v.
Biden, 27 F.4th 336 (5th Cir. 2022). Unfortunately (for the Navy SEALs),
the Supreme Court responded by awarding a partial stay to the Navy, over
the objection of three Justices. See Austin v. U.S. Navy SEALs 1-26, 142 S.
Ct. 1301 (2022). But then Congress stepped in to support the SEALs. See
James M. Inhofe National Defense Authorization Act for Fiscal Year 2023,
Pub. L. No. 117–263, § 525, 136 Stat. 2395, 2571–72 (2022).
Yet the Navy continued to resist. The 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. See Lloyd Austin,
Rescission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019
Vaccination Requirements for Members of the Armed Forces (Jan. 10, 2023).
Even during oral argument in this appeal, the Navy refused to admit
illegality or assure the SEALs that their religious convictions would be
respected in the future. It was only after oral argument that the Navy abruptly
abandoned its discrimination policy, in an obvious effort to evade our review
by purporting to render this proceeding moot. See, e.g., Opulent Life Church
v. City of Holly Springs, 697 F.3d 279, 284–86 (5th Cir. 2012) (change of
government policy “the night before oral argument” did not moot case).
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Case: 22-10077 Document: 00516812016 Page: 17 Date Filed: 07/06/2023
No. 22-10077
c/w No. 22-10534
If this was a confession of error—if this sudden policy change was
sincere rather than strategic—the Navy could just ask us to dismiss its appeal.
But the Navy has not confessed error. To the contrary, the 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.
“[A] defendant cannot automatically moot a case”—and thereby
avoid accountability—“simply by ending its unlawful conduct once sued.”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). “[S]ubsequent events
[must] make it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Trinity Lutheran Church of Columbia, Inc.,
v. Comer, 137 S.Ct. 2012, 2019 n.1 (2017) (cleaned up) (emphasis added).
That’s because an official “could engage in unlawful conduct, stop when
sued to have the case declared moot, then pick up where he left off, repeating
this cycle until he achieves all his unlawful ends.” Already, 568 U.S. at 91.
The majority says we should presume the military’s good faith. Ante,
at 10–11. But the military’s record on these issues does not inspire trust. We
should be “suspicious . . . of officials who try to avoid judicial review by
voluntarily mooting a case”—especially in the absence of an admission of
illegality or credible assurance of future compliance. Tucker v. Gaddis, 40
F.4th 289, 295 (5th Cir. 2022) (Ho, J., concurring). See also id. at 295–96.
That said, if there is any silver lining here, perhaps it’s that the
majority appears to leave it open for the district court on remand to conclude
that the SEALs should ultimately prevail in this case. See ante, at 13 (“the
issues Plaintiffs raise can still be litigated in the district court”); id. at 14.
It’s been said that “cowards never start, the weak never finish,
winners never quit.” These faithful SEALs have shown that they will not
quit—and that they deserve to win.
17